TURMAN-KENT v. Merit Systems Protection Bd.

United States Court of Appeals
for the Federal Circuit
__________________________

BYRDIE A. TURMAN-KENT,
Petitioner,

v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________

2011-3100
__________________________

Petition for review of the Merit Systems Protection
Board in AT0831040365-I-1.
___________________________

Decided: September 9, 2011
___________________________

BYRDIE A. TURMAN-KENT, of Evanston, Illinois, pro se.

SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________

Before BRYSON, O’MALLEY, and REYNA, Circuit Judges.
TURMAN-KENT v. MSPB 2

Opinion for the court filed by Circuit Judge BRYSON.
Dissenting opinion filed by Circuit Judge REYNA.

BRYSON, Circuit Judge.

Petitioner Byrdie Turman-Kent seeks review of an or-
der of the Merit Systems Protection Board dismissing her
petition for review of the decision of an administrative
judge on grounds of untimeliness. We affirm.

I

Ms. Turman-Kent married Jesse W. Kent in 2001.
Mr. Kent had previously retired unmarried under the
Civil Service Retirement System (“CSRS”) and had
elected to receive an annuity payable during his lifetime
with no survivor benefits. Mr. Kent died in 2003, and Ms.
Turman-Kent later applied to the Office of Personnel
Management (“OPM”) for survivor annuity benefits as
Mr. Kent’s widow. That request was denied because Mr.
Kent had never elected to provide a survivor annuity for
Ms. Turman-Kent.

Ms. Turman-Kent asked OPM to reconsider its deci-
sion based on a telephone conversation that she and her
late husband allegedly had with an OPM employee re-
garding Mr. Kent’s election of survivor annuity benefits.
After considering that new evidence, OPM affirmed its
determination that Ms. Turman-Kent was ineligible for
survivor annuity benefits. In a January 2004 letter, OPM
explained that a previously unmarried retiree such as Mr.
Kent could have elected to receive a reduced lifetime
annuity with survivor benefits for a new wife only by
notifying OPM of his intentions in a signed writing within
two years of his marriage. See 5 U.S.C. § 8339(k)(2)(A).
3 TURMAN-KENT v. MSPB

That letter also notified Ms. Turman-Kent of her right to
appeal OPM’s decision to the Board.

Ms. Turman-Kent filed an appeal with the Board con-
testing OPM’s reconsideration decision. In May 2004, the
administrative judge who was assigned to her case upheld
OPM’s decision. The administrative judge explained that
Ms. Turman-Kent had provided the Board with no basis
for waiving the two-year statutory time limit for election
of survivor benefits. The administrative judge’s initial
decision was sent to Ms. Turman-Kent with the following
notice:

This initial decision will become final on June 21,
2004, unless a petition for review is filed by that
date or the Board reopens the case on its own mo-
tion. This is an important date because it is usu-
ally the last day on which you can file a petition
for review with the Board. . . . These instructions
are important because if you wish to file a peti-
tion, you must file it within the proper time pe-
riod.

Ms. Turman-Kent did not file a petition for review by the
Board before June 21, 2004, and the administrative
judge’s initial decision therefore became the final decision
of the Board.

Ms. Turman-Kent ultimately filed a petition for re-
view with the Board on August 11, 2010, more than six
years after the initial decision became final. Upon receiv-
ing her petition, the clerk of the Board informed her that
it was untimely filed and provided her with an opportu-
nity to file a motion to accept the filing as timely or waive
the time limit for good cause. In her motion, Ms. Turman-
Kent alleged that she had long suffered from short-term
TURMAN-KENT v. MSPB 4

and long-term memory loss due to an intracerebral hem-
orrhage suffered in 1986. She also represented that her
illness had “flare[d] out of control” after May 2004 due to
extreme stress, but that her medical condition had
“shifted” and “improved” at some time after mid-2006,
when she moved to Illinois. Ms. Turman-Kent stated in
her motion that her disability “made it difficult to find
[her] records in order to accurately chronicle events
necessary to respond in a timely manner.” She attached a
one-page letter from an Illinois physician, Dr. Jean Cava-
naugh, who stated that she had examined Ms. Turman-
Kent before she moved to Georgia in 2002 and again after
July 2006 for cognitive defects attributable to her in-
tracerebral hemorrhage. Dr. Cavanaugh described Ms.
Turman-Kent’s condition as “stable but a major impair-
ment” since the late 1980s. Dr. Cavanaugh stated that
“[t]here is no doubt in my mind that she was unable to
process paper work after her husband’s death.”

After considering Ms. Turman-Kent’s motion, the
Board denied her petition for review as untimely filed.
The Board found the statement of Dr. Cavanaugh insuffi-
cient to support Ms. Turman-Kent’s claim because Dr.
Cavanaugh had not examined Ms. Turman-Kent for
several years during the six-year period of delay in filing
her petition for review. The Board noted that Dr. Cava-
naugh did not allege that she reviewed Ms. Turman-
Kent’s medical records for that time period, and it ob-
served that Dr. Cavanaugh’s statement post-dated the
filing of Ms. Turman-Kent’s petition for review. Finding
no credible medical evidence regarding Ms. Turman-
Kent’s condition between June 2004 and July 2006, the
Board determined that Ms. Turman-Kent “ha[d] not
submitted sufficient evidence to support that her medical
condition impaired her ability to timely file her petition
for review, or to request an extension of time.”
5 TURMAN-KENT v. MSPB

II

Ms. Turman-Kent bears a “heavy burden” to overturn
the Board’s determination that good cause has not been
shown for her untimely filing. Zamot v. Merit Sys. Prot.
Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003); see Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
(en banc) (“whether the regulatory time limit for an
appeal should be waived based upon a showing of good
cause is a matter committed to the Board’s discretion”).
Board regulations require tardy petitioners to file a
“specific and detailed description of the circumstances
causing the late filing, accompanied by supporting docu-
mentation or other evidence.” 5 C.F.R. § 1201.114(f). The
Board has held that when petitioners allege delay for
medical reasons, they must affirmatively identify medical
evidence that addresses the entire period of delay. Jeru-
salem v. Dep’t of the Air Force, 107 M.S.P.R. 660, 663,
aff’d, 280 F. App’x 973 (Fed. Cir. 2008).

Ms. Turman-Kent did not provide the Board with
medical evidence that accounted for the entire six-year
period of delay at issue in this case. In particular, there
was no medical evidence regarding her condition between
June 2004 and July 2006. The Board found it probative
that Dr. Cavanaugh had not examined Ms. Turman-Kent
during the year prior to her husband’s death or for a
three-year period after his death. Ms. Turman-Kent
states that she saw two other physicians during that
period when she lived in Georgia, yet no evidence from
either of those physicians was presented, nor did Dr.
Cavanaugh purport to rely on any such evidence in her
evaluation of Ms. Turman-Kent’s condition during that
period. The dissent refers to a letter written by Ms.
Turman-Kent’s neurologist in 1988. That letter, which
predates the period in question by 16 years, simply ad-
TURMAN-KENT v. MSPB 6

dresses the circumstances giving rise to Ms. Turman-
Kent’s illness and the fact that she would not be able to
continue in her previous profession as an accountant.

We have recognized that the length of delay is an im-
portant factor for the Board to consider in determining
whether a petitioner has shown good cause for an un-
timely filing. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578,
1582 (Fed. Cir. 1994). The length of delay in this case—
six years—is exceptional. Even in cases of ongoing ill-
ness, the Board has found the absence of medical evidence
covering the entirety of a multi-year period to be fatal to a
finding of good cause. See, e.g., Wilson v. Office of Pers.
Mgmt., 83 M.S.P.R. 223, 227 (1999) (noting that documen-
tation of mental illness from 1988 to 1996 did not excuse
absence of medical evidence from period between 1996
and 1999); Phillips v. Dep’t of the Army, 77 M.S.P.R. 305,
309 (1998) (evidence of “recurrent major depressive
disorder” diagnosed in 1995 did not establish petitioner’s
condition between 1995 and 1997). The Board did not
abuse its discretion in demanding a well-documented
explanation of the cause for Ms. Turman-Kent’s delay in
filing her appeal.

Before this court, Ms. Turman-Kent has submitted
several pieces of medical evidence that were not presented
to the Board. That evidence includes several annual
disability certifications issued to her by the Social Secu-
rity Administration, numerous pharmacy reports of
medicines prescribed to her between 2003 and 2011, and
an additional letter from Dr. Cavanaugh dated March
2011 that elaborates on Ms. Turman-Kent’s condition.
Because those items were not presented to the Board,
they are not part of the record on appeal and are not
properly before us. See Mueller v. U.S. Postal Serv., 76
F.3d 1198, 1201-02 (Fed. Cir. 1996) (“Because we are
7 TURMAN-KENT v. MSPB

limited to reviewing decisions of the Board based on the
record before the deciding official, we decline to base our
judgment on evidence that was not part of the record
before the administrative judge.”).

The dissent relies on our decision in Pyles v. Merit
Systems Protection Board, 45 F.3d 411 (Fed. Cir. 1995).
The petitioner in Pyles presented the Board with a medi-
cal finding that she had “increasingly severe dementia,” a
“progressive organic brain disease[]” defined by “the loss
of intellectual faculties.” This court concluded that unre-
butted medical evidence of dementia was sufficient to
establish good cause for untimely filing. Id. at 415. The
dissent argues that because brain cell death caused by an
intracerebral hemorrhage is permanent, Pyles requires
the Board to adopt a presumption that Ms. Turman-
Kent’s cognitive function could not have improved at any
point during her six-year delay in filing a petition for
review. However, our holding in Pyles was predicated not
only on the permanence of dementia but also on its very
nature as “[a] structurally caused permanent or progres-
sive decline in several dimensions of intellectual function
that interferes substantially with the individual’s normal
social or economic activity.” Id. The medical literature
cited by the dissent does not suggest that cognitive func-
tion never improves in persons who have suffered an
intracerebral hemorrhage.

Ms. Turman-Kent’s motion before the Board states
that her illness had temporarily “flare[d] out of control,”
but that at some later time her condition had “shifted”
and “improved” and she “became better able to remember
business details, at times.” That statement conflicts with
Dr. Cavanaugh’s assessment of Ms. Turman-Kent’s
condition as “stable” throughout the six-year period of
delay. Moreover, Ms. Turman-Kent timely filed pleadings
TURMAN-KENT v. MSPB 8

before OPM in 2003 and before the Board in 2004. Those
filings were made during the multiyear period in which
she was not under the care of Dr. Cavanaugh, and they
undermine her claim of an ongoing, irreversible medical
condition suffered a quarter-century ago that has perma-
nently prevented her from timely filing paperwork in
support of her claim. See Ortiz v. Dep’t of Justice, 103
M.S.P.R. 621, 630 (2006) (finding no good cause for delay
due to ongoing illness where evidence did not explain
change in circumstances between period in which appel-
lant complied with Board deadlines and period in which
he failed to comply); Choco v. Office of Pers. Mgmt., 69
M.S.P.R. 638, 641 (1996) (rejecting appellant’s contention
that he was precluded from timely filing a petition for
review for more than five years, “especially in view of the
fact that he was able to file a petition for review with the
Board’s regional office” four months before his petition for
review was due for filing); Hawkins v. Dep’t of the Navy,
67 M.S.P.R. 559, 562 (1995) (no good cause for eight-
month delay in filing petition for review when appellant
“was capable of filing a petition for enforcement [of a
settlement agreement]” early in that period); Sing v. Dep’t
of the Navy, 51 M.S.P.R. 251, 254 (1991) (finding appel-
lant’s allegations of incapacity to file paperwork in a
timely fashion undermined by timely filing of other pa-
pers during the period in question). 1

1 The procedures set forth in this court’s decision in
French v. Office of Personnel Management, 810 F.2d 1118
(Fed. Cir. 1987), for claimants seeking disability retire-
ment benefits are available only upon a showing of in-
competence. See Rapp v. Office of Pers. Mgmt., 483 F.3d
1339, 1341 (Fed. Cir. 2007); Frank v. Office of Pers.
Mgmt., 111 M.S.P.R. 206, 209 (2009) (same for claimant
seeking survivor annuity). In this case, the Board found
that Ms. Turman-Kent has not shown that she was in-
competent or otherwise incapable of filing a petition for
9 TURMAN-KENT v. MSPB

Ms. Turman-Kent also alleges that she did not receive
“proper forms” in a timely manner and was therefore
unable to file a timely petition for review. The document
that she references is the January 2004 OPM reconsid-
eration decision letter that denied her claim for survivor
benefits. Following her receipt of that letter, Ms. Tur-
man-Kent filed a timely appeal with the Board contesting
OPM’s denial of her claim for benefits. The OPM recon-
sideration letter is irrelevant to the timeliness of her
subsequent petition for review by the full Board of the
administrative judge’s initial decision, which is the issue
before us. Ms. Turman-Kent has never alleged that she
did not receive the administrative judge’s initial decision
informing her of the deadline for submitting a petition for
review to the full Board.

Finally, Ms. Turman-Kent states that she was hospi-
talized for hallucinations and seizures during the period
following her return to Illinois. That allegation does not
constitute evidence of her condition between June 2004
and July 2006 because she did not return to Illinois until
after that time period. Her statement therefore cannot
undermine the Board’s ruling. Accordingly, we affirm the
dismissal of Ms. Turman-Kent’s petition for review as
untimely.

No costs.

AFFIRMED

review during the entire period of delay. Therefore, the
decision in French does not provide an independent
ground for reversing the Board’s ruling in this case.
 United States Court of Appeals
for the Federal Circuit
__________________________

BYRDIE A. TURMAN-KENT,
Petitioner,
and
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________

2011-3100
__________________________

Petition for review of the Merit Systems Protection
Board in case No. AT0831040365-I-1.
__________________________

REYNA, Circuit Judge, dissenting.
Twenty-five years ago, Ms. Turman-Kent suffered
what is commonly known as a “stroke.” The cognitive
deficits that resulted were devastating for Ms. Turman-
Kent, as they are for millions of stroke survivors. She has
endured for decades what her doctor describes as a “major
disability.” Yet the Merit Systems Protection Board (“the
Board”) dismissed Ms. Turman-Kent’s petition as un-
timely because she did not provide sufficient evidence
showing good cause for waiving the filing deadline. The
majority opinion (“Maj. Op.”) affirms the Board decision,
stating that “there was no medical evidence regarding her
condition” during what it deemed the critical period in
question. Maj. Op. at 4. Because binding case law exists
that is directly on point and that requires us to presume
TURMAN-KENT v. MSPB 2

the continuation of a permanent medical condition
throughout the entire period of delay, and for other rea-
sons set forth below, I respectfully dissent.
I. Background
On February 12, 1986, at 34 years old, Petitioner
Byrdie Turman-Kent had a stroke. Generally, strokes
occur when the brain is deprived of oxygen due to an
interruption of blood supply. The stroke Ms. Turman-
Kent suffered was secondary to an intracerebral hemor-
rhage. Intracerebral hemorrhages account for just fifteen
percent of all strokes, but they are very serious—victims
have a 30-day mortality rate higher than 50 percent and
the possibility of long-term disability for those that sur-
vive. 1 Intracerebral hemorrhage is caused by a weakened
blood vessel that ruptures and bleeds into the surround-
ing brain tissue. The blood pools and forms a clot, called a
hematoma, which as it grows puts pressure on the brain.
The area that the ruptured artery formerly supplied is
deprived of oxygen-rich blood. Neurological deficits may
result. Quoting the National Institutes of Health,
[s]troke can cause damage to parts of the brain re-
sponsible for memory, learning, and awareness.
Stroke survivors may have dramatically short-
ened attention spans or may experience deficits in
short-term memory. Individuals also may lose
their ability to make plans, comprehend meaning,
learn new tasks, or engage in other complex men-
tal activities.
U.S. Dept. of Health and Human Services, National
Institutes of Health, National Institute of Neurological

1 See Stedman’s Medical Dictionary 1711 (27th ed.
2000); see infra n.2.
3 TURMAN-KENT v. MSPB

Disorders and Stroke, Post-Stroke Rehabilitation, NIH
Publication No. 11 1846, at 6 (Apr. 2011). 2
According to one of her treating physicians, Ms. Tur-
man-Kent’s intracerebral hemorrhage was a consequence
of increased blood pressure, likely brought on by intense
work as an accountant. Ms. Turman-Kent’s stroke was so
severe as to leave her unconscious and paralyzed on the
left side for a time. She improved initially for two years,
but never to where she could return to her job. Her
cognitive deficits have persisted without improvement
since 1988. See infra n.4.
Despite these serious health issues, Ms. Turman-Kent
married Jesse W. Kent, a former federal employee in June
2001. At sixty-two, Mr. Kent was older than his new
bride at forty-nine years old, but he was the one taking
care of Ms. Turman-Kent because of her medical prob-
lems. The following year, the couple moved from Illinois
to Georgia. Just before the move, Ms. Turman-Kent was
evaluated by Jean A. Cavanaugh, M.D., a specialist in
physical medicine and rehabilitation who first began
treating Ms. Turman-Kent shortly after her stroke in
1986 and continues to do so to this day. Dr. Cavanaugh
observed no improvement in her cognitive deficiencies
beyond the initial gains of 1986-1988. This evaluation
occurred in 2002, sixteen years after Ms. Turman-Kent
suffered her stroke.
When Mr. Kent retired unmarried in 1998, he elected
to take a retirement annuity payable only during his
2 Items capable of accurate and ready determina-
tion by resort to unquestionable sources may be given
judicial notice. Genentech, Inc. v. Chiron Corp., 112 F.3d
495, 497 n.1 (Fed. Cir. 1997). I take judicial notice of this
government publication and the other medical dictionar-
ies cited throughout this dissenting opinion. See Pyles v.
Merit Sys. Prot. Bd., 45 F.3d 411, 415 (Fed. Cir. 1995).
TURMAN-KENT v. MSPB 4

lifetime. Under the law, employees who were not married
when they first retired are permitted to later elect to take
a reduction in annuity in order to provide a survivor
benefit for a spouse they later married. Ms. Turman-Kent
claims that she and her husband in 2002 made arrange-
ments by phone to change his election to allow for a
survivorship reduction in his annuity.
Mr. Kent died on June 2, 2003, and Ms. Turman-Kent
sought survivor benefits as his widow. She was denied on
grounds that the government’s records did not indicate
that a written election of survivor benefits was filed
before July 7, 2003, the two-year deadline after the mar-
riage date. Ms. Turman-Kent requested reconsideration,
and by letter of January 22, 2004, was again denied. That
denial letter incorrectly stated that Mr. Kent had passed-
away in August, an error that made Ms. Turman-Kent
wonder if his file had been mixed up with some else’s. 3
The denial of the Office of Personnel Management
(“OPM”) was affirmed in an AJ’s initial decision dated
May 17, 2004. The last page of the AJ’s decision stated
that the result would become final unless a petition for
review was filed before June 21, 2004.
Ms. Turman-Kent, however, did not file prior to June
21, 2004. She claims that by this point, many months
after the death of Mr. Kent, her primary caregiver, life
had become very difficult. Ms. Turman-Kent states that
“[t]he stress of trying to forestall foreclosure made my
illness flare out of control. This lead [sic] to increased

3 This issue, among other issues, could have
been fully explored if Ms. Turman-Kent had succeeded in
having the initial decision reviewed on the merits. This
dissent deals only with whether Ms. Turman-Kent de-
serves review of the AJ determination; I express no opin-
ion on the ultimate merits as they are not relevant to the
issue of excusable delay.
5 TURMAN-KENT v. MSPB

memory problems which caused a type of regression in my
ability to function; especially in the areas of handling
business affairs and meeting deadlines.” RA18. When
she eventually lost her home, Ms. Turman-Kent was
forced to return to Illinois with her sister who had been
with her in Georgia. Ms. Turman-Kent recollects: “With
the loss of my house and my move back to Illinois, paper-
work vital to my petition was misplaced and subsequently
forgotten because of my memory issues . . . . Trying to
make sense of my husband’s death, bring his body back to
Illinois and deal with my own illness, made life a night-
mare for a long time.” Id.
She was again evaluated by Dr. Cavanaugh upon re-
turning to Illinois in 2006. Dr. Cavanaugh still saw no
improvement in the baseline level of Ms. Turman-Kent’s
impairment; she had, in fact, gotten worse. On top of her
already diagnosed inability to function, her seizure medi-
cation had become ineffective.
Upon her return to her family in Illinois, the former
AJ decision was found. A form “Motion to Accept Filing
as Timely and/or to Ask the Board to Waive or Set Aside
the Time Limit” was filed with the Board. Ms. Turman-
Kent explained under oath why good cause existed, writ-
ing that “I have been diagnosed with an intracerebral
hemorrhage with hematoma formation. I have both
short-term and long-term memory loss.” She further
explained to the Board that she suffered from “on-going
health issues,” stating: “I was medically unable to partici-
pate in a timely fashion prior to now due to events in
1986, which left me with residual deficits. These deficits
are permanent . . . .” RA19; RA28. As proof of their
permanence, Ms. Turman-Kent attached an August 31,
2010, letter from her physician, Dr. Cavanaugh, explain-
ing the lasting effects of her stroke after twenty-five
years. See infra n.4.
TURMAN-KENT v. MSPB 6

II. Ms. Turman-Kent’s Medical Evidence
In a letter contained in the record that expresses
medical information and a medical opinion, Ms. Turman-
Kent’s doctor describes the cognitive deficits experienced
by her longtime patient following her stroke. In sum, Dr.
Cavanaugh’s August 31, 2010 medical opinion specifies
that Ms. Turman-Kent suffered an “R frontal intracranial
hemorrhage.” 4 Dr. Cavanaugh elaborates that from 1988

4 The text of Dr. Cavanaugh’s August 31, 2010
medical opinion before the Board, in its entirety, states:
To Whom It May Concern:
The above named [Byrdie Turman] has been a pa-
tient of mine since shortly after her R frontal in-
tracranial hemorrhage in 1986. Her cognitive
deficits are her major disability. Her cognition
improved for 1-2 years and has been stable but a
major impairment since.
I saw her shortly before she left for Atlanta with
her husband who took care of her and then again
after she and her sister returned in July 2006 and
continue to see her.
Her cognitive deficits include decreased initiation
of tasks, lose [sic] of train of thought mid task
[sic], a decreased problem solving for anything
higher than daily events and simple self care.
Because of her cognitive deficits she can not [sic]
manage her own medications. This is very appar-
ent on the electronic medical record because I can
see what her neurologist and internist have ad-
vised. Her sister needs to remind her to take
meds. Her sister has been ill and her niece has to
take patient grocery shopping. She can not [sic]
initiate any activities for pleasure let alone for
complex self care. She could not process what she
needed for this letter, a friend took the phone and
advised me. This has happened with other impor-
tant paperwork also.
7 TURMAN-KENT v. MSPB

onward, Ms. Turman-Kent’s condition became “stable,”
but her cognitive deficits remained “a major impairment.”
These cognitive deficits include: “decreased initiation of
tasks, lose [sic] train of thought mid task [sic], a de-
creased problem solving for anything higher than daily
events and simple self care.” See supra n.4. Dr. Cava-
naugh noted that Ms. Turman-Kent’s “sister needs to
remind her to take meds,” her niece needs to take her to
the grocery store, and a friend had to help Ms. Turman-
Kent understand and articulate what was required for her
appeal. Id. Dr. Cavanaugh concludes that based on these
ongoing and irreversible impairments, “There is no doubt
in my mind that she was unable to process paper work
after her husband’s death.” Id.
III. The Board Decision
The Board’s Final Order of February 11, 2011, how-
ever, rejected Dr. Cavanaugh’s medical opinion. As the
sole basis for its determination, the Board noted that it
would not rely on Dr. Cavanaugh’s medical opinion for
part of the delay period because (1) Dr. Cavanaugh had
not seen Ms. Turman-Kent during the time she lived in
Atlanta, (2) Dr. Cavanaugh did not indicate that she had
reviewed medical files covering their four years apart, and
(3) Dr. Cavanaugh’s letter post-dates the relevant time

There is no doubt in my mind that she was unable
to process paper work after her husband’s death.
He had been the one taking care of her.
I appreciate your consideration in advance. If you
need any more information please do not hesitate
to contact me[.]
Sincerely
Jean Cavanaugh MD
NorthShore University HealthSystem
RA17.
TURMAN-KENT v. MSPB 8

such that “there is no contemporaneous medical evidence
to show the status of appellant’s medical condition be-
tween June 21, 2004, and August 10, 2010, which is the
entire period of delay.” According to the Board, good
cause could not be established because the Petitioner had
not provided more comprehensive medical records cover-
ing two years, from June 2004 to July 2006—the only
portion of the delay period that Dr. Cavanaugh was not
directly treating Ms. Turman-Kent. The Board concluded:
“[W]e find that the appellant has not submitted sufficient
evidence to support that her medical condition impaired
her ability to timely file her petition for review, or to
request an extension of time,” and dismissed. Ms. Tur-
man-Kent, who has never been represented by counsel in
any of these proceedings, appeals to this court pro se.
IV. Discussion
We affirm a decision of the Board unless it is found to
be arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; obtained without proce-
dures required by law, rule, or regulation having been
followed; or unsupported by substantial evidence. 5
U.S.C. § 7703(c) (2006). “The Board necessarily abuses its
discretion when it rests its decision on factual findings
unsupported by substantial evidence.” Pyles v. Merit Sys.
Prot. Bd., 45 F.3d 411, 414 (Fed. Cir. 1995).
In my judgment, the Board’s determination consti-
tutes an abuse of discretion and is contrary to law for
three reasons. First, Dr. Cavanaugh’s medical opinion
expressly covered the entire period of delay. Second, the
Board ignored this court’s precedent created in Pyles such
that medical conditions that are permanent will be as-
sumed to continue to exist after the date of diagnosis
absent rebuttal evidence of record to the contrary. Id. at
415. Third, the Board should have remanded for a deter-
9 TURMAN-KENT v. MSPB

mination under French v. Office of Personnel Manage-
ment, 810 F.2d 1118, 1119 (Fed. Cir. 1987), because it is
“fundamentally unfair to require or allow an incompetent
to act as an advocate” for herself.
A. The Medical Evidence Expressly Covers the
Entire Period of Delay
Both the Board and the majority agreed that “no
medical evidence regarding her condition” was presented
by Ms. Turman-Kent for the relevant period. Maj. Op. at
4. The record demonstrates that this finding is incorrect.
The record contains medical evidence regarding Ms.
Turman-Kent’s condition during the two-year period cited
by the Board and the majority. Dr. Cavanaugh’s medical
opinion covers the relevant period and more, reciting
ongoing “cognitive deficits” that have been a “major
disability” for Ms. Turman-Kent since 1988. See supra
n.4. In particular, Dr. Cavanaugh’s unequivocal medical
opinion is that Ms. Turman-Kent suffers from brain
damage that “made her unable to process paperwork after
her husband’s death.” This conclusion alone established
grounds for a good cause waiver spanning from 1988 to
2010, which includes the entire period of delay. Id.; see
Pyles, 45 F.3d at 415. Hence, the Board’s finding that
there was no evidence covering the entire period of delay
is unsupported by substantial evidence in the record and
constitutes an abuse of discretion.
Similarly, the Board’s assertion that “there is no indi-
cation Dr. Cavanaugh reviewed medical evidence . . .
during the time period that appellant was in Atlanta,” is
also incorrect. Dr. Cavanaugh reported that she reviewed
the electronic medical record of Ms. Turman-Kent. See
supra n.4. The Board did not inquire into whether the
electronic medical records contained entries from this
period. Dr. Cavanaugh, moreover, confirms that she
TURMAN-KENT v. MSPB 10

examined Ms. Turman-Kent before she left for Atlanta (at
sixteen years into the ailment) and after she returned
(twenty years into the ailment), finding no change for the
better during that period. Id. Any inference that Peti-
tioner’s chronic condition while briefly in Georgia was
improved or qualitatively different from the rest of the
twenty-five year history described in the letter is unsup-
ported by substantial evidence. The Board’s demand of
“contemporaneous” evidence on the basis that Dr. Cava-
naugh’s letter post-dates the period in question is also
erroneous. See Pyles, 45 F.3d at 413, 416 (“First, fairly
read, Dr. Daniel’s unrebutted letter [of November 22,
1993] effectively covers the entire period of delay [ending
November 12, 1993].”).
B. The Board Ignored Applicable Precedent
This court has established precedent that addresses
the issue of whether a “good cause waiver” can exist
notwithstanding potential gaps of medical evidence. This
court in Pyles held that when a person is diagnosed with a
medical condition that is by its nature permanent in
severity, the medical condition will be assumed to con-
tinue to exist after the date of diagnosis absent rebuttal
evidence to the contrary. Id. at 415. In Pyles, Dr. Daniel
treated the petitioner, Ms. Margaret Pyles, for dementia
over seven months, from January to July of 1992, but not
thereafter. Id. at 413. Ms. Pyles filed her untimely
appeal on November 12, 1993. Id. The AJ rejected a
letter from Dr. Daniel, written on November 22, 1993, as
incapable of supporting a good cause waiver because Dr.
Daniel had not treated Ms. Pyles during the sixteen
months immediately prior to filing. Id. This court re-
versed, holding:
Where, as here, a party is diagnosed with a medi-
cal condition that is by its nature ‘permanent or
11 TURMAN-KENT v. MSPB

progressive’ in severity, it will be assumed to con-
tinue to exist after the date of diagnosis absent
rebuttal evidence of record to the contrary. Thus,
the only finding the AJ could reasonably have
made on this record is that Pyles suffered demen-
tia from January 1992 to the time the appeal was
filed.
Id. at 415.
Pyles instructs that where a petitioner is diagnosed
with a condition that by its nature is permanent in sever-
ity, and absent related evidence to the contrary, the Board
cannot require additional medical evidence to cover gaps
of medical evidence after diagnosis. Id. at 416. As a
matter of law, a petitioner’s permanent condition is
assumed to continue unabated absent evidence rebutting
the diagnosis. Id. at 415-416; accord Frank v. Office of
Personnel Mgmt., 111 M.S.P.R. 206, 210 (2009) (“Although
the appellant’s medical records do not document his
mental condition after 2000 . . . . [w]here a party is diag-
nosed with a medical condition that is by its nature
permanent or progressive in severity, it will be assumed
to continue to exist after the date of diagnosis absent
evidence to the contrary.”).
I also read Pyles to hold that in order to overcome a
presumption of a permanent medical condition, rebuttal
evidence must be medical evidence:
Because the record contains unrebutted evidence
that Pyles suffered dementia at least through July
1992 and no medical evidence whatsoever tending
to show she improved after that time, the AJ’s
finding . . . is flatly inconsistent with the very na-
ture of dementia. It is unsupported by substantial
evidence or, indeed, any at all, and the denial of
TURMAN-KENT v. MSPB 12

the waiver based on this unsupported finding was
an abuse of discretion.
Pyles, 45 F.3d at 415 (emphasis added).
i. The Board’s Failure to Apply Pyles
The Board failed to apply the Pyles precedent. In-
deed, the Board’s determination does not mention Pyles,
or otherwise indicate that any of the Pyles criteria were
considered. The fact that the Board either overlooked
Pyles, or ignored it entirely, resulted in a determination
that is contrary to law.
It is clear that Pyles applies in this case for the follow-
ing reasons.
First, Ms. Turman-Kent was diagnosed with a medi-
cal condition that by its nature is permanent in its sever-
ity. The record shows that Ms. Turman-Kent’s stroke was
brought on by an intracerebral hemorrhage, the worst
kind by certain metrics. See supra n.1. She was uncon-
scious and paralyzed. She improved initially over two
years, regained consciousness and mobility, but the
cognitive deficits that resulted from neurological damage
remain. She requires assistance to take her medicine and
to complete everyday tasks and functions. Her doctor’s
medical opinion is that her mental impairments prevent
her from processing paperwork. Dr. Cavanaugh con-
firmed that Ms. Turman-Kent’s cognitive deficits are a
major but stable disability since 1988—i.e., permanent.
See supra n.4. The record evidence is consistent with
medical literature concerning the permanent effects of
intracerebral hemorrhage and the limited improvement
prospects beyond a couple of years; in particular with
regard to the irreversible nature of Ms. Turman-Kent’s
13 TURMAN-KENT v. MSPB

cognitive impairments fifteen to twenty-five years post-
hemorrhage. 5

5 Medical dictionaries and other reliable sources
capable of judicial notice indicate that brain damage
resulting from a stroke is irreversible. See, e.g., Sted-
man’s Medical Dictionary 1711 (27th ed. 2000) (“[A]
stroke involves irreversible brain damage, the type and
severity of symptoms depending on the location and
extent of brain tissue whose circulation has been com-
promised.”); Dorland’s Illustrated Medical Dictionary
1768 (29th ed. 2000) (“a condition with sudden onset
caused by acute vascular lesions of the brain, such as
infarction from hemorrhage . . . . is often followed by
permanent neurologic damage.”); see also Black’s Medical
Dictionary 633 (42d ed. 2010) (“Stroke, or cerebrovascular
accident (CVA), is sudden damage to brain tissue . . . The
affected brain cells die and the parts of the body they
control, or receive sensory messages from, cease to func-
tion.”); U.S. Dept. of Health and Human Services, Na-
tional Institutes of Health, National Institute of
Neurological Disorders and Stroke, Post-Stroke Rehabili-
tation, NIH Publication No. 11 1846, at 1 (April 2011)
(“Even though rehabilitation does not ‘cure’ the effects of
stroke in that it does not reverse brain damage, rehabili-
tation can substantially help people achieve the best
possible long-term outcome.”). Importantly, there is little
or no improvement beyond one to two years. See id. at 14
(“Researchers found that functional improvements could
be seen as late as one year after the stroke, which goes
against the conventional wisdom that most recovery is
complete by 6 months.”); accord Robert Teasell, M.D. et
al., Evidence-Based Review of Stroke Rehabilitation § 3.3,
at 6-8 (13th ed. 2010) (“The course of recovery negatively
accelerates as a function of time and is a predictable
phenomenon. . . Peak neurological recovery from stroke
occurs within the first one to three months. A number of
studies have shown that recovery may continue at a
slower pace for at least 6 months; with up to 5% of pa-
tients continuing to recover for up to one year.”) (collect-
ing applicable studies from 1970-2010).
TURMAN-KENT v. MSPB 14

Second, the record does not contain medical evidence
that rebuts the severity of an intracerebral hemorrhage
and the resulting permanent neurological damage. There
is no medical evidence that contradicts that Ms. Turman-
Kent suffered an intracerebral hemorrhage, or whether
the neurological damage she suffered prevented her from
processing paperwork. In sum, the record contains no
medical evidence that rebuts the diagnosis of Ms. Tur-
man-Kent’s permanent condition persisting after so many
years.
Given Ms. Turman-Kent’s permanent deficiencies,
and absent rebuttal medical evidence to the contrary, the
only finding the Board could reasonably have made on the
record before it was that Ms. Turman-Kent suffered major
cognitive deficits from June 2004 to the time the appeal
was filed. The Board’s finding that Ms. Turman-Kent
failed to establish good cause contravenes this court’s
ruling in Pyles and is therefore contrary to law.
ii. The Majority Renders Pyles Ineffective
The majority believes that Pyles does not apply in this
case. First, the majority argues that the record shows Ms.
Turman-Kent’s condition was only temporary, citing Ms.
Turman-Kent’s personal statements regarding “flare-ups”
and noting other “timely filings” before the Board. Maj.
Op. at 6. But none of the information relied on by the
majority to show a temporary condition is medical evi-
dence. 6 As this court in Pyles noted, a finding of a “ten-
6 The AJ in Pyles also attempted to rely on non-
medical evidence to overcome the doctor’s letter there.
Pyles, 45 F.3d at 414. The AJ in Pyles found that appel-
lant’s sale of her house, relocation to another state, and
her sorting through possessions was “contrary” evidence,
stating: “The evidence of the appellant’s implied mental
incapacity to file an earlier appeal is belied by this evi-
dence reflecting that during the time period for an appeal
15 TURMAN-KENT v. MSPB

dency to improve” absent medical evidence is flatly incon-
sistent with the very nature of a severe, permanent
medical condition. 45 F.3d at 415. There simply is no
medical evidence in the record that the cognitive deficits
suffered by Ms. Turman-Kent as a result of an intracere-
bral hemorrhage were temporary in nature. Stated
differently, there is no evidence in the record that rebuts
Dr. Cavanaugh’s opinion that Ms. Turman-Kent’s perma-
nent condition made her unable to process paperwork
following her husband’s death. Because the record is
devoid of medical evidence rebutting the diagnosis of a
permanent condition, Pyles is fully applicable to this case.
See Newell Cos. v. Kenny Mfg. Co., 864 F.2d 757, 765 (Fed.
Cir. 1988) (stating that “prior decisions of a panel of the
court are binding precedent on subsequent panels unless
and until overturned in banc”).
The majority’s non-medical evidence is nothing more
than a “strained attempt to find in [Ms. Turman-Kent’s]
submissions a basis for finding her competent to handle
her own legal affairs,” an approach roundly rejected by
the court. Pyles, 45 F.3d at 416. That the majority seeks
to distinguish Pyles by relying on findings not made by
the Board amounts to judicial post-hoc rationalization.
Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 168-69 (1962) (“The agency must make findings that
support its decision, and those findings must be supported
by substantial evidence. . . The courts may not accept

the appellant was able to manage her own affairs.” Id.
This court reversed, holding that the evidence cited by the
AJ could not rise to the level of rebuttal evidence, that is,
evidence sufficient to reasonably overcome the presump-
tion of a permanent medical condition. Id. at 415. This
non-medical evidence trying to show competence was
rejected by the Federal Circuit because there was “no
medical evidence whatsoever tending to show she im-
proved . . . .” Id.
TURMAN-KENT v. MSPB 16

appellate counsel’s post hoc rationalizations . . . .”). Our
review must be limited to those grounds relied on and
articulated by the Board. See id.; Sec. & Exch. Comm’n v.
Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing
court, in dealing with a determination or judgment which
an administrative agency is alone authorized to make,
must judge the propriety of such action solely by the
grounds invoked by the agency. If those grounds are
inadequate or improper, the court is powerless to affirm
the administrative action by substituting what it consid-
ers to be a more adequate or proper basis.”); see also In re
Hounsfield, 699 F.2d 1320, 1324 (Fed. Cir. 1983). In
order to avoid Pyles, the majority adopts findings that go
beyond the grounds stated by the Board. This court
should not serve to supplement that which the Board
lacks in its determination. Chenery, 332 U.S. at 196.
The majority rewrites the Pyles determination. Ac-
cording to the majority, the presence of a timely filing, 7 a
7 The majority points to other, timely appeals
as evidence of only a temporary condition. Maj. Op. at 6.
Ms. Pyles, too, made other timely filings before and after
her time with Dr. Daniel, but this did not undermine his
conclusion of permanence. See Pyles, 45 F.3d at 413-14.
Taken to its logical extent, the majority’s argument that
the existence of other, timely appeals undermines one’s
claim of an irreversible condition would preclude any
petitioner gaining relief before this court using Pyles, as
at least one timely filing would be on record at the Fed-
eral Circuit. The majority cites no relevant authority.
The Pyles court already dismissed Sing v. Department of
the Navy, 51 M.S.P.R. 251 (1991) as irrelevant in this
context because Mr. Sing’s “depressive episodes [we]re by
definition temporary, treatable, and non-organic,” unlike
the irreversible condition of Ms. Pyles. 45 F.3d at 416.
Similarly, Ortiz v. Department of Justice, 103 M.S.P.R.
621, 630 (2006), Hawkins v. Department of the Navy, 67
M.S.P.R. 559 (1995), and Choco v. Office of Personnel
Management, 69 M.S.P.R. 638 (1996), are irrelevant
17 TURMAN-KENT v. MSPB

layman statement by the petitioner, 8 and any purported
gap in the record, 9 can defeat the presumption estab-
lished in Pyles. In making these arguments, the majority
establishes a new rule of law and overrules Pyles sub
silentio. Given the majority’s reliance on non-medical
contrary evidence, petitioners with a permanent condition
will be effectively foreclosed from the presumption of
Pyles. At minimum, the majority should have remanded
with instructions that the Board determine whether Pyles
applies.
C. French Procedure Determination
In French, this court instructed the Board to arrange
representation for mentally incompetent pro se appellants
seeking disability retirement benefits. 810 F.2d at 1120.

because they are based on merely temporary or undiag-
nosed conditions. To the degree that any of these Board
decisions conflict with our governing law in Pyles, they
are not binding.
8 The majority points to Ms. Turman-Kent’s
statement that her condition “flare[d] out of control” in
2003, but thereafter “improved” somewhat. Maj. Op. at 6.
The record in this case shows only that Ms. Turman-
Kent’s condition sometimes gets appreciably worse, not
that her cognitive deficits ever improve beyond the base-
line level of impairment diagnosed. To unduly emphasize
an isolated, out-of-context statement from a pro se appel-
lant over the clear thrust of her entire medical record is
contrary to law. French, 810 F.2d at 1120 (“It is also
unfair that the full board’s decision regarding French’s
disability was based on the incompetent’s testimony at
the hearing, with its admissions, rather than on medical
evidence regarding his sickness and its duration.”).
9 This case is even more compelling than Pyles
because Ms. Turman-Kent’s physician treated her for
decades longer; her physician performed another evalua-
tion after their time apart; and her physician’s letter
explicitly covered the entire period of delay. Pyles had
none of these. See Pyles, 45 F.3d at 413-16.
TURMAN-KENT v. MSPB 18

The court agreed that Mr. French, proceeding pro se, had
failed to make the requisite showing of mental incompe-
tence to qualify for a waiver, but held that where there is
“an apparently nonfrivolous claim of past incompetence
by one presently incompetent,” the Board must take an
“active role” ensuring that the incompetent appellant not
alone be “charged with the task of establishing his case.”
Id.
The Board recently extended the fairness principles
articulated in French to other types of claimants. Specifi-
cally, in Frank v. Office of Personnel Management, 111
M.S.P.R. 206 (2009), the Board applied French to a pro se
appellant with mental impairment seeking entitlement to
survivor annuities under 5 U.S.C. § 8341. Id. at 210 (“we
discern no reason why the French procedures should not
be applied here”). In Frank, petitioner had failed to
produce medical documentation covering the most recent
nine years of his illness, so his claim was denied. Id. Mr.
Frank subsequently filed a petition for review, but did so
late. Id. at 208 n.2.
Citing Pyles, the Board determined that the timeli-
ness requirement was waivable for good cause based on
petitioner’s past mental incompetence, id. at 208 n.2, and
remanded for further French consideration because,
Although the appellant’s medical records do not
document his medical condition after 2000, they
nonetheless document a history of chronic mental
illness spanning more than 20 years. We find,
under the circumstances of this case, that these
records are sufficient to call into doubt the appel-
lant’s mental competency to prosecute his appeal
pro se.
Id. at 210. The Board vacated and remanded, allowing
new evidence and argument on the appellant’s present
19 TURMAN-KENT v. MSPB

mental competence under French, and requiring adequate
representation if deemed necessary. Id. at 211.
Ms. Turman-Kent’s documented medical history is
just as long as Mr. Frank’s, she is entirely pro se in seek-
ing her survivor annuity, and the evidence strongly
suggests she is currently mentally incompetent. See
supra n.4 (“she can not [sic] manage her own medications
. . . [s]he can not [sic] initiate any activities for pleasure
let alone for complex self-care . . . [s]he could not process
what she needed for this letter”). As to this last crite-
rion—current mental incompetence—the Board’s deter-
mination is focused exclusively on the span of time Ms.
Turman-Kent was in Georgia. The Board did not other-
wise reject Dr. Cavanaugh’s opinion regarding incompe-
tence from 2006-2010, when Ms. Turman-Kent was back
under her care. In fact, the Board made no findings
regarding competence at all, basing its holding strictly on
alleged gaps in evidence. Clearly the French standard for
present mental incompetence could be found in this
instance: “An applicant may be one having some minimal
capacity to manage his own affairs, and not needing to be
committed. The claimant is not required to have been a
raving lunatic continuously.” Frank, 111 M.S.P.R. at 210
(internal quotation marks omitted). Accordingly, Ms.
Turman-Kent should also have benefited from the over-
arching fairness principles of French, as extended by
Frank. Here, too, it was:
“patently unreasonable and fundamentally unfair
to require or allow an incompetent to act as an
advocate” for h[er]self in a situation in which [s]he
“was required to establish or allowed to attempt to
show h[er] own incompetency for many years in
the past.”
TURMAN-KENT v. MSPB 20

Id. (quoting French, 810 F.2d at 1119). I find that this
case should have been remanded with instruction to the
Board to make a French determination.
V. Conclusion
In good cause determinations “broad equitable princi-
ples of justice and good conscience” must be applied and
“any doubt about whether good cause has been shown
should be resolved in favor of an appellant.” Alonzo v.
Dep’t of the Air Force, 4 M.S.P.R. 180, 184, 186 (1980).
This principle has disappeared from the Board’s analysis.
The case law requires no more than a “reasonable ex-
cuse,” id. at 184, which Ms. Turman-Kent undoubtedly
presented. I would have reversed and remanded for the
reasons stated above, and therefore I dissent.