U.S. Court of Appeals, Federal Circuit
March 08, 1999
JOHN F. GRASSIA, PETITIONER,
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.
Before Newman, Schall, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
John F. Grassia petitions for review of the final decision of the Merit Systems Protection Board (Board) affirming the Office of Personnel Management's (OPM's) denial of his application for disability retirement benefits. Grassia v. Office of Personnel Management, PH-831E-98-0011-I-1. We affirm.
Mr. Grassia worked as a quality assurance specialist with the Defense Contract Administration Service in Philadelphia. He was involuntarily separated from that position on October 30, 1989, following an on-the-job injury. Over seven years later, on June 11, 1997, he submitted a disability retirement application to OPM.
In an initial decision issued on June 18, 1997, OPM denied Mr. Grassia's application as untimely because it was not filed within one year of his separation from service, as required by 5 U.S.C. § 8337(b). After OPM denied reconsideration of its initial decision, Mr. Grassia appealed to the Board. In an initial decision, the administrative Judge (AJ) affirmed OPM's determination. The AJ's initial decision became the final decision of the Board on September 24, 1998, when the Board denied Mr. Grassia's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Our review of the Board's decision is limited. We must affirm the decision unless it is (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c); Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed. Cir. 1995).
Mr. Grassia's first argument on appeal is that the Board erred in failing to consider that 5 C.F.R. § 831.1205(b) materially affected the outcome of his case. The regulation cited by Mr. Grassia requires an agency to advise an employee of his possible eligibility for disability retirement benefits when he is removed "based on reasons apparently caused by a medical condition." Id. Mr. Grassia maintains that he was removed because of his medical condition but was never notified of his possible eligibility for disability retirement.
In response, OPM argues that the regulation cited by Mr. Grassia cannot displace the statutory time limit set forth in 5 U.S.C. § 8337(b). Section 8337(b) provides that a claim [for disability retirement benefits] may be allowed only if the application is filed with [OPM] before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by [OPM] for an employee or Member who at the date of separation from service or within 1 year thereafter is mentally incompetent, if the application is filed with [OPM] within 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.
According to OPM, Mr. Grassia's untimely application cannot be accepted absent a showing that he was mentally incompetent during the statutory time period.
In sustaining OPM's denial of Mr. Grassia's application, the Board held that 5 U.S.C. § 8337(b) allows a waiver of the one year statutory time limit only in cases of mental incompetence, and that OPM's regulation cannot provide an additional basis for waiving the statutory limitation. The Board's ruling was correct. In Killip v. Office of Personnel Management, 991 F.2d 1564 (Fed. Cir. 1993), we addressed whether OPM could confer upon itself the authority to accept an employee's retirement election made after the expiration of a time limit set by statute. We stated that, "[t]hough an agency may promulgate rules or regulations pursuant to authority granted by Congress, no such rule or regulation can confer on the agency any greater authority than that conferred under the governing statute." Id. at 1570. Consequently, we held that the retirement election could not be accepted after the statutory time limit.
Similarly, OPM's regulations cannot provide authority for OPM to accept disability retirement applications received after the one year statutory time limit set forth in 5 U.S.C. § 8337(b). The Board therefore properly determined that 5 C.F.R. § 831.1205(b) provided no basis for OPM to accept Mr. Grassia's untimely application. *fn1
The sole basis for a waiver under the statute is for an employee's mental incompetence during the one year time period. See 5 U.S.C. § 8337(b). Mr. Grassia argues that he was, and still is, mentally incompetent. However, he has failed to present any evidence to that effect. As the Board correctly concluded, Mr. Grassia has failed to establish his entitlement to a waiver due to mental incompetence during the one year time period.
For the foregoing reasons, the Board properly affirmed OPM's denial of Mr. Grassia's disability retirement application. We therefore affirm the Board's decision.
Each party shall bear its own costs.