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At page 1343 Remanding for agency fact-finding on notice provision6 citing casesfinding tolling appropriate under a theory of waiver
- Truong v. United States Sec'y of Agric., 461 F. Supp. 2d 1349 (Ct. Intl. Trade 2006).published Whether premised on (1) radiations from the Due Process Clause of the United States Constitution, see e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir.1997); cf. Vargas-Garda v. INS, 287 F.3d 882, 886 (9th Cir.2002); (2) the fact that st…
- Kyong Truong v. United States Sec'y of Agric., 30 Ct. Int'l Trade 1512 (Ct. Intl. Trade 2006).published Whether premised on (1) radiations from the Due Process Clause of the United States Constitution, see eg., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf. Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir. 2002); (2) the fact that…
- Nancy L. Johnston (Substituted for William F. Johnston) v. Off. of Pers. Mgmt., 430 F.3d 1376 (Fed. Cir. 2005).published Accordingly, the opinion is modified as follows (with emphases added to show the changes made): *1377 41B F.3d at 1342, second full paragraph, first sentence is changed to read: “OPM bears the burden of showing that the requisite notice wa…
- Tavares v. Off. of Pers. Mgmt., 151 F. App'x 962 (Fed. Cir. 2005).unpublishedFurthermore, unlike in Johnston v. Office of Personnel Management, 413 F.3d 1339, 1343 (Fed.Cir.2005), there is no suggestion here that the agency failed to comply with a regulatory obligation to notify Mr. Tavares of his opportunity to re…
- Corkery v. Off. of Pers. Mgmt., 151 F. App'x 966 (Fed. Cir. 2005).unpublishedFurthermore, unlike in Johnston v. Office of Personnel Management, 413 F.3d 1339, 1343 (Fed.Cir.2005), there is no suggestion here that the agency failed to comply with a regulatory obligation to notify Mr. Corkery of his opportunity to re…
- Jordan v. Off. of Pers. Mgmt., No. 2005-3116 (Fed. Cir. Oct. 12, 2005).unpublishedSee Johnston, 413 F.3d at 1343 (“[I]nadequate or confusing notice does not satisfy the duty of notice of substantive rights.” (citing Wood v. Office of Pers.
At page 1342 Burden of proof for agency notice requirements5 citing cases“OPM bears the burden of showing that the requisite notice was sent by the agency”
- Truong v. United States Sec'y of Agric., 461 F. Supp. 2d 1349 (Ct. Intl. Trade 2006).published Whether premised on (1) radiations from the Due Process Clause of the United States Constitution, see e.g., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir.1997); cf. Vargas-Garda v. INS, 287 F.3d 882, 886 (9th Cir.2002); (2) the fact that st…
- Kyong Truong v. United States Sec'y of Agric., 30 Ct. Int'l Trade 1512 (Ct. Intl. Trade 2006).published Whether premised on (1) radiations from the Due Process Clause of the United States Constitution, see eg., Stieberger v. Apfel, 134 F.3d 37, 40 (2d Cir. 1997); cf. Vargas-Garcia v. INS, 287 F.3d 882, 886 (9th Cir. 2002); (2) the fact that…
- Nancy L. Johnston (Substituted for William F. Johnston) v. Off. of Pers. Mgmt., 430 F.3d 1376 (Fed. Cir. 2005).published “OPM bears the burden of showing that the requisite notice was sent by the agency”
At page 1341 cited at this page1 citing case
- Oldanis Disotuar v. Off. of Pers. Mgmt., No. AT-844E-21-0126-I-1 (MSPB May 3, 2024).unpublishedJohnston v. Office of Personnel Management, 413 F.3d 1339, 1341-42 (Fed.
Retrieving the full opinion text from the archive…
Johnston
v.
Office of Personnel Management
v.
Office of Personnel Management
2004-3260.
Court of Appeals for the Federal Circuit.
Nov 17, 2005.
Published opinion
413 F.3d 1339
Cited by 7 opinions | Published
United States Court of Appeals for the Federal Circuit
04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
John H. Williamson, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a petition for rehearing for respondent. With him on the petition were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and William F. Ryan, Assistant Director. Of counsel on the petition was Jill Gerstenfeld, Attorney, Office of the General Counsel, Office of Personnel Management, of Washington, DC.
Nancy L. Johnston (for William F. Johnston), of Seaford, Delaware, pro se.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
ON PETITION FOR REHEARING
Before NEWMAN, CLEVENGER, and, BRYSON, Circuit Judges.
ORDER
A petition for rehearing having been filed by the respondent, Office of Personnel
Management,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is granted for the limited purpose of modifying
the opinion issued on June 28, 2005. The precedential order modifying the opinion is
attached.
(2) The mandate of the court will issue on November 25, 2005.
FOR THE COURT
November 17, 2005 _____________________ Jan Horbaly Clerk
cc: Nancy L. Johnston
John H. Williamson, Esq.
United States Court of Appeals for the Federal Circuit
04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.
[*~1340–1342]04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
John H. Williamson, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, filed a petition for rehearing for respondent. With him on the petition were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and William F. Ryan, Assistant Director. Of counsel on the petition was Jill Gerstenfeld, Attorney, Office of the General Counsel, Office of Personnel Management, of Washington, DC.
Nancy L. Johnston (for William F. Johnston), of Seaford, Delaware, pro se.
Appealed from: United States Merit Systems Protection Board
United States Court of Appeals for the Federal Circuit
04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
ON PETITION FOR REHEARING
Before NEWMAN, CLEVENGER, and, BRYSON, Circuit Judges.
ORDER
A petition for rehearing having been filed by the respondent, Office of Personnel
Management,
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The petition for rehearing is granted for the limited purpose of modifying
the opinion issued on June 28, 2005. The precedential order modifying the opinion is
attached.
(2) The mandate of the court will issue on November 25, 2005.
FOR THE COURT
November 17, 2005 _____________________ Jan Horbaly Clerk
cc: Nancy L. Johnston
John H. Williamson, Esq.
United States Court of Appeals for the Federal Circuit
04-3260
NANCY L. JOHNSTON
(substituted for William F. Johnston),
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.
PER CURIAM.
ON RECONSIDERATION
The Office of Personnel Management (OPM) has requested amendment of the court's opinion, reported at Johnston v. OPM, 413 F.3d 1339 (Fed. Cir. 2005), to clarify that the duty to notify Mr. Johnston of his separation and eligibility for disability retirement belonged primarily to the agency that employed Mr. Johnston, rather than OPM. We agree that clarification is warranted. Accordingly, the opinion is modified as follows (with emphases added to show the changes made):
[*~1341–1343]413 F.3d at 1342, second full paragraph, first sentence is changed to read: "OPM bears the burden of showing that the requisite notice was sent by the agency."
[*~1342–1344]413 F.3d at 1342, third full paragraph, first sentence is changed to read: "The Board ignored the burden on OPM to show that notice was given by the agency, and . . . ."
413 F.3d at 1343, first paragraph, last sentence is changed to read: "The burden is on OPM to establish compliance with the statutory and regulatory requirements . . . ."
[*~1343–1344]413 F.3d 1343, final paragraph, second sentence is changed to read: ". . . as to whether or when the agency sent or Mr. Johnson received . . . ."
No costs.
04-3260 2