The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES E. BROWN, II, DOCKET NUMBER
Appellant, SF-844E-16-0508-I-1
v.
OFFICE OF PERSONNEL DATE: March 23, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gregory A. Tibbs, Waldorf, Maryland, for the appellant.
Thomas Styer, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a timely petition for review of the initial decision
that affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement as untimely filed. Generally, we
grant petitions such as this one only when: the 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 The appellant, formerly employed by the Smithsonian Institution
(Smithsonian), resigned from Federal service in 2012. Initial Appeal File (IAF),
Tab 5 at 30. More than 3 years after resigning, he filed an application for
disability retirement under the Federal Employees’ Retirement System (FERS).
Id. at 32-35. OPM issued a decision denying his disability retirement application
as untimely since it was filed more than 1 year after the appellant separated from
service. Id. at 10-11 (citing 5 U.S.C. § 8453). OPM, however: (1) informed the
appellant that the law permitted a waiver of the time limit if an employee showed
that he was mentally incompetent at the time of separation from service or within
1 year thereafter; and (2) invited him to provide evidence showing that his delay
3
was caused by mental incompetence. Id. at 10, 14. The appellant filed a request
for reconsideration but indicated that he would not be providing any additional
evidence. 3 Id. at 7.
¶3 OPM then issued a final decision sustaining its original decision that
dismissed the appellant’s disability retirement application as untimely filed. Id.
at 4-5. The appellant appealed the final decision to the Board and requested a
hearing. IAF, Tab 1 at 3. During the hearing, he testified that his physical
condition prompted his resignation because it affected his lower extremities and
required bypass surgery followed by a 6-to-8-month recovery period. IAF, Tab 8,
Hearing Compact Disc (HCD), Tab 9, Initial Decision (ID) at 4. He also testified
that the Smithsonian did not notify him about the filing deadline when he
resigned. ID at 4; HCD. The administrative judge issued an initial decision
affirming OPM’s final decision denying the disability retirement application as
untimely filed. ID at 5. He reasoned that the appellant neither argued nor
presented evidence that he untimely filed because of mental incompetence. ID
at 2-3. The administrative judge also found that the Smithsonian’s alleged failure
to notify the appellant of the deadline was not a basis for waiver. 4 ID at 4-5.
¶4 The appellant has timely petitioned for review. Petition for Review (PFR)
File, Tab 1. 5 He does not specify the nature of his challenges but offers, for the
first time, medical documentation showing that: (1) before his resignation, he
3
The appellant’s disability retirement application did not elaborate on the nature of his
disability. IAF, Tab 5 at 32-35.
4
The appellant does not challenge this finding on review, and we see no basis to disturb
it. See Chapman v. Office of Personnel Management, 110 M.S.P.R. 423, ¶ 11 (2009)
(observing that an agency has no duty to inform a FERS employee who voluntarily
resigns of the time limit for applying for disability reti rement).
5
Although the appellant states that he is “requesting reconsideration,” PFR, Tab 1
at cover page, we treat his request as a petition for review, 5 C.F.R. § 1201.114(a)(1)
(explaining that a petition for review is a pleading in which a party contends that an
initial decision was incorrectly decided).
4
suffered various physical conditions that necessitated a bypass surgery on his leg;
and (2) after his resignation, he was prescribed various medications, including
anti-depressants and anti-anxiety medications. Id. at 1-27. OPM has not
responded to his petition for review.
¶5 We read the appellant’s petition for review as asserting that the disability
retirement filing deadline should have been waived under the statute. However,
the relevant waiver statute, 5 U.S.C. § 8453, is inapplicable here. It provides that
a waiver may be allowed only if an employee is mentally incompetent “at the date
of separation from service or within 1 year thereafter.” During the proceeding
below, the appellant unambiguously stated that he “was not claiming mental
incompetence.” IAF, Tab 7 at 2. To the extent that the appellant is arguing, for
the first time on review, that he qualifies for a waiver because he suffers from
anxiety and depression, we decline to consider this new argument. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board
need not consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence previo usly
unavailable despite the party’s due diligence). 6
¶6 On appeal, the appellant expressly stated that he was not claiming mental
incompetence. ID at 2-3. In addition, he does not explain on review why he
could not present his medical evidence, which is dated before the initial decision
was issued, below. ID at 1; PFR File, Tab 1 at 20; see Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980) (observing that the Board will not consider
6
Moreover, an anti-depressant or anti-anxiety prescription cannot warrant a waiver of
the filing deadline, given that an employee’s depression or anxiety does not
automatically amount to mental incompetence envisioned by the statute . See Burton v.
Department of Veterans Affairs, 83 M.S.P.R. 174, ¶ 7 (1999). Rather, the employee is
required to explain why these conditions “impaired his ability to meet the . . . filing
limits or seek an extension of time.” Id. Here, the appellant did not provide any such
explanation.
5
new evidence submitted on review absent a showing that it was unavailable
before the record closed despite the party’s due diligence).
¶7 Accordingly, we discern no basis to disturb the administrative judge’s
findings that waiver of the filing deadline was unwarranted and we find that OPM
properly dismissed the appellant’s disability retirement application as untimely
filed.
NOTICE OF APPEAL RIGHTS 7
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 b elow 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.
7
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 m atter.
6
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 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
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 tha t 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
7
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:
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
8
(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. 8 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.
8
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.
9
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.