United States Court of Appeals for the Federal Circuit 

04-3260 

WILLIAM F. JOHNSTON, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

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. 

Appealed from: United States Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit

 04-3260 

WILLIAM F. JOHNSTON, 

Petitioner, 

 v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

DECIDED: June 28, 2005 

__________________________ 

Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges. 

NEWMAN, Circuit Judge. 

William F. Johnston petitions for review of the decision of the Merit Systems 

Protection Board, Docket No. PH831E030308-I-1, 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. 
04-3260 2 

 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 
04-3260 3 

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 

retirement options, and the time limits. He argues that the one-year deadline did not arise 
04-3260 4 

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 (1990) for its holding that a 

claimant who relied on erroneous advice from a federal employee could not thereby estop 
04-3260 5 

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. 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. 

OPM argues that its December 12, 1989 letter requesting medical documentation, 

quoted supra, was the requisite statutory notice. However, that letter contained no 
04-3260 6 

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
04-3260 7 

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