William F. Johnston, of
Seaford, Delaware, pro se.
John H.
Williamson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Peter D. Keisler, Assistant Attorney General, David M.
Cohen, Director, and William F. Ryan, Assistant Director. Of counsel on the
brief was Jill Gerstenfeld, Attorney, Office of the General Counsel, Office of
Personnel Management, of Washington, DC.
Before
NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.
PAULINE NEWMAN,
Circuit Judge.
William F.
Johnston petitions for review of the decision of the Merit Systems Protection
Board, Docket No. PH831E030308-I-1, 96 M.S.P.R. 116, 2004 WL 928212, affirming
the Office of Personnel Management's dismissal of his application for
disability retirement benefits under the Civil Service Retirement System
("CSRS"). We vacate the dismissal, and remand for further
proceedings.
Page 1341
BACKGROUND
Mr. Johnston
was injured in February of 1983 during employment by the Army Corps of
Engineers. He was awarded Office of Workers' Compensation Programs benefits for
total disability. On December 12, 1989 the Army wrote to him, asking for
medical documentation of his current condition and when he would be able to
return to work. The letter stated that normally a decision is made, after a
year of absence due to injury, as to whether the employee will be able to
return to work, and "[i]f the decision is unfavorable to the employee,
he/she can apply for a disability retirement from the Office of Personnel
Management (OPM). Once the disability retirement is approved, the employee can
elect the better benefit, i.e., continuing the Office of Worker's Compensation
Programs (OWCP) benefit or the OPM retirement."
Mr. Johnston
states that no unfavorable decision was communicated to him. He made no
application for disability retirement, made no election, and continued to
receive OWCP benefits. On April 1, 2003 the OPM wrote to Mr. Johnston,
informing him that he was entitled to a deferred retirement annuity because he
had reached age 62. He was then age 66. He then filed, in early May 2003, an
application for disability retirement benefits. He acknowledged that the
application was "many years late," but stated that the agency
"never informed or notified me to file Standard form 3112 or any other
type of form for retirement." The OPM denied the application as untimely,
citing the one-year limit of 5 U.S.C. § 8337(b), measured by OPM from March 1,
1991.The MSPB affirmed the OPM's decision.
The record
of this appeal includes a copy of a SF-50 form provided by OPM to the MSPB
during this litigation. The SF-50 terminated Mr. Johnston's employment status
on March 1, 1991. Mr. Johnston states that he never received this SF-50, or any
other notice of formal termination of his employment. There was no evidence
that the SF-50 had been sent, or that Mr. Johnston was advised of the change of
his status. Mr. Johnston states that he learned of his "options or
rights" in April 2003, upon OPM's tardy notification of his entitlement to
a deferred annuity. OPM held that the time for filing the application for
disability retirement expired one year after March 1, 1991.
DISCUSSION
The statute
governing disability retirement provides that benefits may be granted
"only if the application is filed with the Office before the employee . .
. is separated from the service or within 1 year thereafter." 5 U.S.C. §
8337(b).
Statute and
regulation require written notice of proposed separation from employment:
5 U.S.C. §
7513(b). An employee against whom an action is proposed is entitled to —
(1) at least
30 days' advance written notice, unless there is reasonable cause to believe
the employee has committed a crime for which a sentence of imprisonment may be
imposed, stating the specific reasons for the proposed action . . . .
The agency
is required to issue a decision to remove an employee for medical reasons,
including advising the employee in writing of possible eligibility for
disability retirement:
5 C.F.R. §
831.1205(b)(1). When an agency issues a decision to remove an employee . . .
but 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.
Mr. Johnston
states that the agency failed to notify him of his changed status, his
Page 1342
retirement options, and the time limits. He argues that the
one-year deadline did not arise in 1991 in view of these errors and omissions
by the agency. He states that, whether on a theory of estoppel, waiver, or
equitable tolling, he should not be prejudiced by the agency's failure to
comply with its own regulations and advise him of the change in his official
employment.
Precedent
supports Mr. Johnston's position. Waiver may lie against the agency when
procedural error, in contravention of the agency's established duties, results
in derogation of the employee's rights. See Simpson v. Office of Pers. Mgmt.,
347 F.3d 1361 (Fed.Cir.2003) (when OPM did not provide statutorily mandated
notice of election rights, the employee's failure to meet a statutory deadline
may be excused); Wood v. Office of Pers. Mgmt., 241 F.3d 1364 (Fed.Cir.2001)
(when OPM sends a confusing letter regarding election rights, it is not enough
for it to later send a compliant notice, if that notice does not correct the
earlier confusion).
OPM bears
the burden of showing that the requisite notice was sent. Brush v. Office of
Pers. Mgmt., 982 F.2d 1554, 1561 (Fed.Cir.1992) (to prove that it has met its
burden of providing notice, OPM must show that "notice was actually
sent" and "offer proof as to the contents" of the notice).
Failure to provide notice of a filing deadline may excuse an employee's failure
to meet timing provisions that depend on such notice. See Casey v. Merit Sys.
Prot. Bd., 748 F.2d 685, 686 (Fed.Cir.1984) (the agency provided tardy notice
under 5 U.S.C. § 7513(b), and the employee's filing was timely when measured
from the date of actual notice).
The Board
ignored the burden on OPM to show that notice was given, and invoked Office of
Personnel Management v. Richmond, 496 U.S. 414, 110 S.Ct. 2465, 110 L.Ed.2d 387
(1990) for its holding that a claimant who relied on erroneous advice from a
federal employee could not thereby estop the government from denying his claim.
That is a misreading of Richmond, for the Court did not absolve the federal
government of the consequences of agency error, but held that the agency is not
estopped from reaching the correct result, even when an agency representative
gave incorrect information to an employee. In Richmond the claimant sought to
rely on an agency's erroneous advice that he was entitled to a certain annuity
payment, although he was not in fact so entitled and the agency's advice was
"in direct contravention of the federal statute upon which" his claim
rested. Thus the Court held that the agency was not estopped, by its employee's
error, from determining the correct annuity to be paid. 496 U.S. at 424, 110
S.Ct. 2465. In contrast, Mr. Johnston states that he received no notice or
advice, contrary to regulation, although he may in fact have been entitled to
disability benefits. Richmond does not excuse an agency's violation of its
duty, or apply an agency's error in order to deny an employee's just
entitlement.
Statute and
regulation embody the congressional intent that federal employees be informed
of their rights and entitlements, implementing the federal employer's
affirmative duty to "protect an employee's rights." Harris v. Dep't
of Veterans Affairs, 142 F.3d 1463, 1470 (Fed.Cir.1998) (interpreting 5 C.F.R.
§ 844.202(a)). The one-year time period set in 5 U.S.C. § 8337(b) arises with
the agency's notification to the employee that he has been terminated for
medical reasons. The time period for response is measured by the date of actual
notice. See Casey, 748 F.2d at 686 (measuring the timing of response from the
date of the tardy notice). The agency cannot invoke a deadline that passed
before notice was given.
Page 1343
OPM argues
that its December 12, 1989 letter requesting medical documentation, quoted
supra, was the requisite statutory notice. However, that letter contained no
determination that Mr. Johnston was deemed medically unable to return to work.
The letter requested information for the purpose of ascertaining when and if
Mr. Johnston could return to work. It was not a notice of termination, and
contained no information or procedures for applying for disability retirement.
As held in Wood, 241 F.3d at 1367, inadequate or confusing notice does not
satisfy the duty of notice of substantive rights. The burden is on OPM to
establish that it complied with the statutory and regulatory requirements of
notice. Brush, 982 F.2d at 1561.
OPM relies
on Deerinwater v. Office of Personnel Management, 78 F.3d 570, 573
(Fed.Cir.1996) and Killip v. Office of Personnel Management, 991 F.2d 1564,
1570 (Fed.Cir.1993). Neither of these cases involved a contravention or
omission of OPM's statutory and regulatory duties. In Deerinwater the employee
relied on incorrect advice from an agency representative that an application
for disability retirement would be timely if received by the employing agency within
one year, whereas the statute and regulation require receipt by OPM within one
year; this court rejected the employee's argument that the regulation was
confusing and misleading, characterizing the argument as a
"smokescreen" and an attempt "to make an end run around
Richmond." Deerinwater, 78 F.3d at 573. There was no issue in Deerinwater
of whether a statutory notice had been given.
In Killip
the question was whether OPM had the authority to allow an election to transfer
from the Civil Service Retirement System to the Federal Employee Retirement
System, where the statute required that such election be made by June 30, 1988.
Killip, 991 F.2d at 1568-70. The court held that OPM "lacked the
authority" to consider elections made "outside of the carefully
defined open season." Id. at 1570. In neither Deerinwater nor Killip was
there an allegation that the agency failed to give any notice required by law,
and no statutory time period measured by the date of giving such notice.
In contrast,
Mr. Johnston's situation is analogous to that of the employee in Brush, 982
F.2d 1554, whose former spouse was relieved of her failure to meet a deadline
to elect a survivor annuity, because the agency had not met its obligation to
provide notice of this election right. Similar agency obligation is present
here, for statute and regulation require that the disabled employee be notified
of his rights and filing deadlines.
Mr. Johnston
states that he did not receive the requisite notice stating that his employment
had been formally terminated and advising him of his options, and that he was
not aware of his possible entitlement until he received OPM's letter of April
1, 2003. The Board stated that it need not consider the credibility of Mr.
Johnston's testimony, and made no findings as to whether or when OPM sent or
Mr. Johnston received the requisite notice. As we have discussed, the Board
erred in holding that it was irrelevant whether such notice had been sent and
received. We vacate the decision of the Board, and remand for determination of
whether such notice was in fact given. In the event that OPM does not meet its
burden of establishing earlier notice, the filing deadline is appropriately
measured from the April 1, 2003 letter from OPM to Mr. Johnston.
VACATED AND
REMANDED