Anna Maciel v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANNA MACIEL, DOCKET NUMBER

Appellant, SF-844E-20-0420-I-1

v.

OFFICE OF PERSONNEL DATE: August 13, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jennifer Maciel , Gilroy, California, for the appellant.

Linnette Scott , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the reconsideration decision of the Office of Personnel Management

(OPM) denying her disability retirement application 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to demonstrate mental incompetence requisite for waiver

of the time limit for applying for disability retirement.

The appellant argues that she produced sufficient evidence of her mental

incompetence for waiver of the time limit for applying for disability retirement

under the Federal Employees’ Retirement System (FERS). 2 Petition for Review

(PFR) File, Tab 1 at 6-9. The administrative judge concluded that the appellant’s

evidence was insufficient to demonstrate that she was mentally incompetent

during the relevant period. Initial Appeal File (IAF), Tab 18, Initial Decision

(ID) at 5-7. In order to establish her entitlement to a waiver of the 1-year time

limit for filing a disability retirement application, the appellant must prove by

preponderant evidence 3 that she was mentally incompetent when she was

2

The parties do not challenge the administrative judge’s finding that the appellant’s

application for disability retirement was untimely, and we see no reason to disturb that

finding.

3

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

3

separated from service or within 1 year thereafter, and that she filed her

application with OPM within 1 year of the date she was restored to competency or

within 1 year of the date of the appointment of a fiduciary, whichever occurred

first. 5 U.S.C. § 8453; 5 C.F.R. § 1201.56(b)(2)(ii). An applicant for disability

retirement need not be institutionalized or completely unable to manage her own

affairs to be deemed incompetent. Rapp v. Office of Personnel Management ,

483 F.3d 1339, 1341 (Fed. Cir. 2007). A person who suffers from mental

disabilities would not necessarily be considered incompetent. Id. Mental

incompetence is instead a diminished ability to handle one’s affairs in a normal

fashion. French v. Office of Personnel Management, 810 F.2d 1118, 1120 (Fed.

Cir. 1987). In determining whether an applicant for disability retirement benefits

was or is mentally incompetent, the Board requires medical evidence supporting

subjective opinions that the applicant is incompetent. Arizpe v. Office of

Personnel Management, 88 M.S.P.R. 463, ¶ 9 (2001). A medical provider’s

conclusion that an applicant is mentally incompetent is persuasive only if the

provider explains how a mental illness renders her incompetent. Gonzales v.

Office of Personnel Management, 91 M.S.P.R. 46, ¶ 5, aff’d, 48 F. App’x 747

(Fed. Cir. 2002).

The appellant on review asserts that she provided “objective medical

documentation” demonstrating her history of anxiety and depression. PFR File,

Tab 1 at 8-9. For example, she cites medical documentation showing treatment

for emotional instability with associated depression and anxiety from 1997-1999,

and again from 2015-2019. IAF, Tab 4 at 11, 18, 38, Tab 14. She additionally

cites a 2019 referral order diagnosing her with an unspecified anxiety disorder

and payment for treatment. IAF, Tab 5 at 18, Tab 13 at 48. Finally, she cites a

2017 evaluation for neck and low back pain. IAF, Tab 4 at 96-105. The

evaluation specifically noted her treatment for anxiety disorder and depression.

Id. at 98. The evaluation further found her concentration and calculation

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

4

impaired, concluding that the appellant had “[b]orderline intellectual

functioning.” 4 Id. at 102-04. The evaluation found the appellant moderately or

moderately-to-severely impaired in numerous categories, including her ability to

follow complex instructions, maintain attention and concentration, adapt to

changes in job routine or stressors in the workplace, interact appropriately with

coworkers, supervisors, and the public, and withstand the stress of a routine

workday. Id. at 105.

Nonetheless, we agree with the administrative judge that the appellant has

failed to meet her burden of demonstrating mental incompetence during the

relevant period. Although the medical evidence suggests the appellant had some

emotional and cognitive impairments, none of it supports a conclusion that the

appellant’s psychological problems rendered her mentally incompetent or unable

to handle her personal affairs. IAF, Tab 4 at 11, 18, 38, 98-105, Tab 5 at 18.

Specifically, the April 2017 evaluation found that the appellant was oriented and

aware of current events, and her thought process was intact, linear, and logical.

Id. at 102. The evaluation further noted that the appellant should be able to

communicate, understand, read, drive, take public transportation, and work in any

work environment except on unprotected heights. Id. at 100-01. The appellant

was also deemed unimpaired in following simple instructions, performing simple

and repetitive tasks, and managing her funds. Id. at 105. The evaluation found

that her cognitive complaints were “likely secondary to emotional dysfunction.”

Id. at 104. Consequently, her medical provider’s statements do not explain how

any mental illness renders her incompetent. Indeed, the appellant was capable of

attending the medical examination unaccompanied, and she was described as alert

and oriented. Id. at 98, 102.

4

Borderline intellectual functioning describes a group of people whose mental

functioning is the focus of clinical attention and is on the border between normal

intellectual functioning and intellectual disability. Jannelien Wieland & Frans G.

Zitman, It is time to bring borderline intellectual functioning back into the main fold of

classification systems, BJPsych Bull, vol. 40(4) (Aug. 2016),

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4967780.

5

The appellant further challenges the administrative judge’s reasoning that,

because she was able to handle some affairs during the relevant period, she was

not mentally incompetent. PFR File, Tab 1 at 6-7. The appellant is correct that

the fact that she could handle some personal affairs during the period does not

automatically render her competent. See French, 810 F.2d at 1120 (finding the

statute may be satisfied by one having some minimal capacity to manage her own

affairs, and need not be a “raving lunatic continuously”). Nonetheless, we agree

with the administrative judge that the fact that the appellant could handle some

personal affairs during and around the filing period weighs against a finding of

mental incompetence. ID at 7; see Smith v. Office of Personnel Management,

82 M.S.P.R. 642, ¶ 10 (1999) (finding that the appellant’s participation in a

removal appeal and filing of a discrimination complaint during the period for

filing a disability retirement application constituted significant circumstantial

evidence that the appellant was not incompetent), aff’d, 230 F.3d 1380 (Fed. Cir.

2000) (Table).

To the extent the administrative judge found that the appellant contacted

the Social Security Administration (SSA) for assistance with completing an

application and filed for Social Security Disability Insurance (SSDI) benefits

during the 1-year period after her separation, we note that her communication

with SSA and application for SSDI occurred about 2 months before separating

from her employing agency. IAF, Tab 4 at 69, Tab 13 at 34; ID at 7.

Nevertheless, there is no evidence that the appellant’s mental faculties diminished

or otherwise changed during this time or throughout the 1-year filing period.

Accordingly, we consider the evidence that the appellant was able to manage her

personal affairs by attending various appointments shortly before and after the

filing period in determining her mental incompetence. IAF, Tab 4 at 11, 17,

19-21; see Bruce v. Office of Personnel Management , 119 M.S.P.R. 617, ¶ 12

(2013) (discussing consideration of medical evidence of mental incompetence that

occurred outside the 1-year filing period when there is no change in the

6

appellant’s condition). Additionally, the April 2017 evaluation discussed above

took place during the filing period and noted that the appellant arrived

unaccompanied and was able to manage her personal funds. IAF, Tab 4 at 98,

105. Accordingly, we find that this circumstantial evidence supports the

conclusion that the appellant was not incompetent. See Smith, 82 M.S.P.R. 642,

¶ 10.

While not dispositive, the Board must consider an award of SSA benefits in

determining an individual’s eligibility for disability retirement. Szejner v. Office

of Personnel Management, 99 M.S.P.R. 275, ¶ 12 (2005), aff’d, 167 F. App’x 217

(Fed. Cir. 2006). The record below contained a finding from the SSA that the

appellant was disabled and entitled to monthly disability benefits starting in

December 2016. IAF, Tab 4 at 17. However, mental incompetence regarding an

untimely filed disability retirement application and mental disability are not the

same thing. Stussy v. Office of Personnel Management, 662 F. App’x 972, 975

(Fed. Cir. 2016). 5 Notwithstanding the appellant’s SSA award, we find that she

has not shown she was mentally incompetent as required for a waiver of the filing

deadline.

The appellant additionally argues that her mental incompetence is

demonstrated by a series of poor decisions she made during the relevant period,

including not claiming workers’ compensation or pursuing an equal employment

opportunity complaint. PFR File, Tab 1 at 7, 9-10; IAF, Tab 15 at 11. The

administrative judge found that the appellant failed to demonstrate that these

allegedly poor decisions were the result of mental incompetence. ID at 7. We

agree. Regardless of whether her emotional and cognitive problems led her to not

pursue various options, these decisions, poor or otherwise, do not demonstrate

mental incompetence. She asserts that, during the relevant period, her stress

levels were high and she got “brain fog.” PFR File, Tab 1 at 7; IAF, Tab 4 at 10.

5

The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the

Federal Circuit when, as here, it finds the court’s reasoning persuasive. E.g.,

Encarnado v. Office of Personnel Management, 116 M.S.P.R. 301, ¶ 12 n.6 (2011).

7

She further asserts that her personal hygiene suffered, she was unable to clean her

home, and she could not read or comprehend. PFR File, Tab 1 at 7; IAF, Tab 4

at 10. Of note, the appellant’s April 2017 evaluation concluded that the appellant

“should be able to converse, communicate, understand, read and write in

English.” IAF, Tab 4 at 100. She further states that she missed years with her

family due to the ongoing problems. PFR File, Tab 1 at 7-8; IAF, Tab 4 at 10.

She additionally submitted personal statements from herself, her daughter, and

her roommate. PFR File, Tab 1 at 7; IAF, Tab 4 at 40, 43-44, Tab 15 at 10-13,

Tab 16 at 4-5. We have considered this subjective evidence; but, we agree with

the administrative judge that, considering the record as a whole, the appellant

failed to prove by preponderant evidence that she was mentally incompetent on

the date of her separation from service or within 1 year thereafter. ID at 6.

The appellant’s remaining arguments on review are not persuasive.

The appellant further argues that her employing agency failed to meet its

burdens under 5 C.F.R. § 844.202 regarding her application for disability

retirement. PFR File, Tab 1 at 11. We are unpersuaded.

In certain scenarios, an employing agency must file an application for

disability retirement on behalf of an employee. 5 C.F.R. § 844.202(a). Among

the requisite conditions are the following: (1) the employing agency has issued a

decision to remove the employee; (2) the removal was based on unacceptable

performance, attendance, or conduct stemming from disease or injury; and (3) the

employee is either institutionalized or the agency concludes, based on a review of

medical and other information, that the employee is incapable of making a

decision to file an application for disability retirement. 5 C.F.R. § 844.202(a).

There is a question of whether the appellant was removed or voluntarily

resigned. PFR File, Tab 1 at 5. However, we need not reach this issue here as

the cause of separation is not dispositive. On review, the appellant asserts that

she was not removed by her employing agency but rather she voluntarily quit. Id.

If true, then there is no employing agency obligation to file an application for

8

disability retirement on behalf of the employee or otherwise advise her of her

possible eligibility for such retirement benefits. 5 C.F.R. § 844.202(a), (b); see

Elendu v. Office of Personnel Management, 108 M.S.P.R. 1, ¶ 6 n.1 (2008)

(finding that where an employee voluntarily resigned from service, the employing

agency was under no obligation to inform him of his disability retirement

eligibility and of the time limit for filing an application). On the contrary, if she

was removed, not all of the conditions for triggering an employing agency’s

obligation to file have been met. For example, there is no evidence that the

agency concluded, after its review of medical documentation, that the cause for

unacceptable attendance was disease or injury, or that the appellant was incapable

of making a decision to file an application for disability retirement on her own.

5 C.F.R. § 844.202(a)(2), (3). In the absence of such evidence, we find that the

agency was not required under 5 C.F.R. § 844.202(a) to file an application for

her.

When the conditions of 5 C.F.R. § 844.202(a) have not been met, but a

removal is based on reasons apparently caused by a medical condition, the

employing agency must advise the employee of her possible eligibility for

disability retirement and of the time limit for filing an application. 5 C.F.R.

§ 844.202(b)(1). The appellant challenges her employing agency’s disciplinary

actions based on attendance issues, which led to her proposed removal; she

asserts she was absent for doctor and therapy appointments, and her absences

were therefore caused by a medical condition. PFR File, Tab 1 at 4. Thus, she

argues, because the employing agency failed to notify her of her rights and

benefits when it proposed her removal, the 1-year time limit for filing a disability

retirement application should be waived. Id. at 11. We disagree. The Board has

held that OPM cannot be estopped from enforcing the 1-year statutory filing

deadline, even in the event of a failure on the part of the employing agency to

notify her of her right to file a disability retirement application. See Overall v.

Office of Personnel Management, 52 M.S.P.R. 15, 17 (1991) (addressing an

9

untimely filed disability retirement application under the Civil Service Retirement

System (CSRS)); see also Chapman v. Office of Personnel Management ,

110 M.S.P.R. 423, ¶ 9 (finding the statutory and regulatory framework for

disability retirement under both CSRS and FERS are broadly similar), review

dismissed, 363 F. App’x 745 (Fed. Cir. 2009). Thus, even if the employing

agency failed to meet its notice burden, OPM cannot be estopped from enforcing

the filing deadline.

NOTICE OF APPEAL RIGHTS 6

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 cases fall within their

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

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

6

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.

10

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 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.

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

mination . 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. 420 (2017). If you have a representative in this case,

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

11

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:

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 delivery 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

12

(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. 7 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).

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.

7

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.

13

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.