UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CAMILLE M. CAESAR,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-844E-17-0486-I-1

DATE: April 27, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Camille M. Caesar, Washington, D.C., pro se.

Shawna Hopkins, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the final decision of the Office of Personnel Management (OPM) 

dismissing her application for disability retirement as untimely filed. Generally, 

we grant petitions such as this one only in the following circumstances: the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

initial decision 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 administrative 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). After fully considering the filings in this 

appeal, 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). 

BACKGROUND

¶2 Effective March 17, 2010, the appellant was removed from Federal service 

based on misconduct.

2

 Initial Appeal File (IAF), Tab 6 at 50. On January 14, 

2015, the appellant applied for disability retirement benefits under the Federal 

Employees’ Retirement System (FERS). Id. at 14. By initial decision dated 

March 14, 2016, OPM dismissed the appellant’s disability retirement application 

as untimely filed. Id. at 14-15. The appellant requested reconsideration of 

OPM’s decision, and on April 3, 2017, OPM issued a reconsideration decision 

affirming its initial decision on the grounds that the appellant did not timely file 

her application and did not show a basis on which to waive the filing deadline. 

Id. at 4-5.

 

2

Specifically, the Department of Commerce removed her from her position as a GS-15 

Attorney Advisor based on the following charges: (1) Causing the Alteration of an 

Official Document; (2) Lack of Candor; (3) Failure to Follow a Direct Order; and

(4) Conduct Unbecoming a GS-15 Attorney Advisor. IAF, Tab 6 at 50. 
3

¶3 The appellant timely appealed OPM’s reconsideration decision to the Board. 

IAF, Tab 1. Following a hearing, the administrative judge affirmed OPM’s 

reconsideration decision. IAF, Tab 23, Initial Decision (ID). The administrative 

judge considered the appellant’s argument that, because of her medical condition, 

the agency should have provided her notice of the possibility of applying for 

disability retirement. ID at 5-6. He found, however, that the appellant’s medical 

condition did not cause the misconduct that formed the basis of her removal and 

thus the agency was under no regulatory or statutory obligation to provide her 

with such notice. ID at 7. As such, he found that the appellant filed her 

application almost 5 years after the statutory time limit expired. Id. 

¶4 The appellant timely filed a petition for review in which she reasserts her 

argument that she was entitled to notice from her employing agency of her 

eligibility for disability retirement and that the agency’s failure to provide her 

with such notice entitles her to equitable tolling of the time limit to file her 

application. Petition for Review (PFR) File, Tab 1 at 16-17. OPM has filed a 

response. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 An application for disability retirement under FERS must be filed with an 

employee’s employing agency before the employee separates from service or with 

the former employing agency or OPM within 1 year after the employee’s 

separation. 5 U.S.C. § 8453; King v. Office of Personnel Management, 

112 M.S.P.R. 522, ¶ 7 (2009); 5 C.F.R. § 844.201(a)(1). This 1-year time limit 

for filing a disability retirement application following an employee’s separation 

from service may be waived if the employee is mentally incompetent at the date 

of separation or within 1 year thereafter and if the application is filed with OPM 

within 1 year from the date the employee is restored to competency or is 

appointed a fiduciary, whichever is earlier. King, 112 M.S.P.R. 522, ¶ 7; 

5 C.F.R. § 844.201(a)(4). Pursuant to 5 C.F.R. § 844.202(b)(1), when an agency 
4

removes an employee covered by FERS 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 and of the 

time limit for filing an application.” The Board has held that the regulation 

requires the agency to act when it appears that the basis for the removal was 

caused by a medical condition, regardless of whether the removal was for 

disciplinary or other reasons. King, 112 M.S.P.R. 522, ¶ 13. 

¶6 The appellant contends on review that she was entitled to notice of her 

possible eligibility for disability retirement, that her employing agency failed to 

give such notice, and that she is thus entitled to equitable tolling of the 1-year 

time limit for filing an application for disability retirement. PFR File, Tab 1 

at 16-17. The appellant cites to Winchester, a nonprecedential U.S. Court of 

Appeals for the Federal Circuit decision, and Johnson, a nonprecedential Board 

decision, for the proposition that she is entitled to equitable tolling. Id. at 21-23; 

see Winchester v. Office of Personnel Management, 449 F. App’x 936, 938 (Fed. 

Cir. 2011)

3

; Johnson v. Office of Personnel Management, MSPB Docket 

No. CH-844E-14-0449-M-1, Remand Order (Sept. 2, 2016). 

¶7 However, the administrative judge considered these two cases below and 

determined that they do not provide a basis for equitable tolling in the instant 

case. ID at 5. We agree. First, the administrative judge correctly noted that

neither case constitutes binding precedent on the Board. See Hamilton v. Brown,

39 F.3d 1574, 1581 (Fed. Cir. 1994) (reminding counsel and lower courts that 

“nonprecedential opinions and orders . . . do not represent the considered view of 

the Federal Circuit regarding aspects of a particular case beyond the decision 

itself, and they are not intended to convey this court’s view of law applicable in 

 

3 While the appellant in Winchester applied for disability retirement under the Civil 

Service Retirement System (CSRS), there is no substantive difference between the 

CSRS and FERS statutes or regulations as applicable to this appeal. Compare 5 U.S.C. 

§ 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

other cases”); 5 C.F.R. § 1201.117(c)(2) (explaining that nonprecedential orders 

are not binding and have no precedential authority); ID at 5. Second, the 

administrative judge factually distinguished both cases from the instant appeal. 

ID at 5. In those cases, the employing agency removed the appellants for reasons 

connected to their respective medical conditions. ID at 5; see Winchester, 

449 F. App’x at 937 (noting that the appellant was removed for reasons connected 

to his medical condition as extensively described in his removal notice); 

Johnson v. Office of Personnel Management, MSPB Docket No. CH-844E-14-

0449-B-1, Initial Decision at 6 (Dec. 8, 2016) (finding that the agency had been 

provided information from the appellant’s medical providers that the absences 

that caused the agency to charge the appellant with, and propose his removal for, 

absence without leave were due to a medical condition). 

¶8 Here, in contrast, the administrative judge found that there was not a 

connection between the appellant’s medical condition and the misconduct for 

which she was removed. ID at 5. The appellant alleges that the administrative 

judge erred in not referencing the medical evidence in the initial decision that she 

submitted below. PFR File, Tab 1 at 4, 18. However, the administrative judge 

acknowledged that the appellant provided a “great deal of documentary evidence 

regarding her medical condition.” ID at 5. Moreover, an administrative judge’s 

failure to mention all of the evidence of record does not mean that he did not 

consider it in reaching his decision. Marques v. Department of Health & Human 

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) 

(Table). Accordingly, the appellant has provided no reason for disturbing the 

administrative judge’s well-reasoned finding that there was not a connection 

between the appellant’s medical condition and her removal. ID at 5. 

¶9 The appellant also alleges that the administrative judge incorrectly found 

that, under 5 C.F.R. § 844.202(b)(1), she must show that she has a medical 

condition that served as a successful defense to her misconduct in an 

administrative hearing to be entitled to notice of eligibility for disability 
6

retirement. PFR File, Tab 1 at 4. The administrative judge did not make any 

such finding. Rather, the administrative judge referenced the appellant’s prior

removal appeal to note that nothing in that appeal indicated that her medical 

condition caused the misconduct and that, while she had a disability 

discrimination claim, she did not argue that her condition caused the misconduct. 

ID at 5-6. Thus, contrary to the appellant’s assertions, he did not find that 

section 844.202(b)(1) requires a successful disability discrimination defense to a 

misconduct charge. PFR File, Tab 1 at 22; ID at 5-6.

¶10 The administrative judge correctly noted that, because the appellant’s 

removal was not based on reasons apparently caused by a medical condition, the 

employing agency was not required to provide her with notice of her potential 

eligibility for disability retirement and equitable principles need not be invoked 

to determine whether waiver of the statutory time limit is appropriate . ID at 6-7. 

Thus, OPM properly dismissed the appellant’s application for disability 

retirement as untimely filed. Accordingly, we affirm the administrative judge’s 

initial decision.

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which case s fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular 

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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 
8

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 
9

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial deliver y or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
10

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board