NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3062
ROBERT E. FORD, II,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Robert E. Ford, II, of Jacksonville, Florida, pro se.
Steven M. Mager, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Harold D. Lester, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2010-3062
ROBERT E. FORD, II,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board
in AT0831090514-I-1.
___________________________
DECIDED: May 10, 2010
___________________________
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Robert E. Ford, II, petitions for review of a decision of the Merit Systems
Protection Board affirming the decision of the Office of Personnel Management (“OPM”)
denying his application for disability retirement benefits. We affirm.
BACKGROUND
Mr. Ford worked for the United States Postal Service until May 11, 1990. More
than 17 years later, on December 14, 2007, he filed with OPM an “Application for
Immediate Retirement.” In his application, he requested that he be granted disability
retirement from his former position with the Postal Service. OPM denied Mr. Ford’s
request on August 28, 2008. Citing 5 U.S.C. § 8337(b), OPM stated that “the law
requires that applications for disability retirement be filed with OPM either prior to
separation from service or within one year thereafter.” OPM dismissed Mr. Ford’s
application because the application was “not filed within the time limit set by law.”
Mr. Ford sought reconsideration, and OPM again denied relief because his 2007
application was filed more than 16 years after the expiration of the one-year statutory
limitations period. In its decision, OPM noted that, under 5 U.S.C. § 8337(b), it could
waive the one-year period if Mr. Ford was mentally incompetent “on the date of
separation or within one year thereafter.” OPM found, however, that Mr. Ford was
“capable of handling [his] personal day to day affairs” and that there was no medical
evidence showing that he was mentally incompetent between May 1990 and May 1991.
Mr. Ford appealed OPM’s reconsideration decision to the Merit Systems
Protection Board. Following a hearing, the administrative judge who was assigned to
the case affirmed OPM’s decision. The administrative judge found that Mr. Ford had
failed to file his application within the statutory time period and had admitted that he was
competent during the one-year period following the termination of his employment with
the Postal Service. The full Board denied Mr. Ford’s petition for review of the
administrative judge’s decision. Mr. Ford now petitions this court for review.
DISCUSSION
Under 5 U.S.C. § 8337(b), an application for disability retirement under the Civil
Service Retirement System must be filed with OPM “before the employee . . . is
2010-3062 2
separated from the service or within 1 year thereafter.” The statute provides that the
time limitation may be waived if the employee “at the date of separation from service or
within 1 year thereafter is mentally incompetent,” so long as “the application is filed with
the Office within 1 year from the date of restoration of the employee . . . to competency
or the appointment of a fiduciary, whichever is earlier.” Id. As the administrative judge
noted, the statute permits waiver of the time limit “only if the applicant is mentally
incompetent.” Deerinwater v. Office of Pers. Mgmt., 78 F.3d 570, 573 (Fed. Cir. 1996);
Parker v. Office of Pers. Mgmt., 974 F.2d 164, 165 (Fed. Cir. 1992).
Mr. Ford does not argue that the Board erred in interpreting 5 U.S.C. § 8337(b),
and he does not dispute the Board’s findings. Instead, he asserts that he was
involuntarily terminated from his position and that he was targeted for termination
because of his disability. He further states that he did not file an application for disability
retirement benefits during the appropriate period because he was only 35 years old at
that time. Mr. Ford also argues that he “did [not] get a chance to tell [his] story” at the
hearing before the administrative judge because he “froze up” when OPM’s counsel
“mentioned perjury.”
As the administrative judge pointed out, Mr. Ford’s claim that he was involuntarily
terminated does not fall within the scope of his appeal from OPM’s denial of his
application for disability retirement. Instead, that claim would have to be brought as a
separate unlawful termination claim against the Postal Service under 5 U.S.C. § 7513,
although that claim, if pursued now, would be substantially out of time. As for Mr. Ford’s
contention that he did not apply for disability retirement when he left the Postal Service
in 1990 because he was only 35 years old and did not realize that he might be entitled
2010-3062 3
to disability retirement benefits, the applicable statute makes it clear that an employee
who becomes disabled after at least five years of civilian service is eligible for disability
retirement regardless of his age, as long as he files an application for disability
retirement within the statutory period. 5 U.S.C. § 8337(a). Mr. Ford’s lack of knowledge
of his possible eligibility for disability retirement benefits and of the time limitation on
applying for those benefits is not an excuse for his failure to seek those benefits on a
timely basis. In fact, OPM lacks discretion to waive the one-year deadline under either
the Civil Service Retirement System or the Federal Employees’ Retirement System
absent a showing of mental incompetence during that period. McLaughlin v. Office of
Pers. Mgmt., 353 F.3d 1363, 1364, 1368 (Fed. Cir. 2004); Brickhouse v. Office of Pers.
Mgmt., 111 M.S.P.R. 518, 520 (2009); Deerinwater, 78 F.3d at 573; Crane v. Office of
Pers. Mgmt., 55 M.S.P.R. 16, 18 (1992); Stevenson-Phillips v. Office of Pers. Mgmt., 48
M.S.P.R. 527, 531 (1991). As for Mr. Ford’s claim regarding his inability to tell his story
at the hearing, he has not offered an adequate explanation for his failure to say what he
wanted to say, and he has not pointed to anything he might have said that would have
affected the outcome of his appeal, which turned on his failure to file his disability
retirement application within the statutorily prescribed time period. We therefore uphold
the Board’s decision denying his request for disability retirement benefits.
2010-3062 4