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Grassia v. Office of Personnel Management

March 08, 1999

JOHN F. GRASSIA, PETITIONER,
v.
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.

DECISION

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.

DISCUSSION

I.

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).

II.

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).

A.

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 ...


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