UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHY P. WEBB, DOCKET NUMBER
Appellant, DA-844E-16-0084-I-1
v.
OFFICE OF PERSONNEL DATE: May 31, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kathy P. Webb, Pine Bluff, Arkansas, pro se.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
disallowing her disability retirement application because it was untimely filed.
Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
circumstances: 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 decisi on,
which is now the Board’s final decision. 5 C.F.R. § 1201.113.
BACKGROUND
¶2 The Department of the Army separated the appellant from her Security
Guard position at the end of a term appointment on August 3, 2006. Initial
Appeal File (IAF), Tab 1 at 2, Tab 4 at 213. On May 20, 2014, she applied for
disability retirement under the Federal Employees’ Retirement System (FERS).
IAF, Tab 4 at 207-16. In a final decision dated October 26, 2015, OPM
disallowed her application because it was not timely filed, and she appealed that
determination to the Board. IAF, Tab 1 at 1, Tab 4 at 4 -5.
¶3 The administrative judge issued an order advising the appellant of her
burden of proving either that her disability retirement application was timely filed
or that she was entitled to a waiver of the time limit for filing because she was
mentally incompetent during the filing period. IAF, Tab 7. The appellant did not
respond. In an initial decision issued without holding the requested hearing, the
administrative judge affirmed OPM’s final decision. IAF, Tab 1 at 1, Tab 8,
Initial Decision (ID). He found that her disability retirement application was
3
untimely filed and that she was not entitled to a waiver of the time limit for filing
because she did not claim that she was prevented by mental incompetence from
timely filing her application. ID at 3.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and the agency has responded in opposition, PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An application for disability retirement under FERS must be filed with an
employee’s employing agency before the employee separates from service or with
the former employing agency or OPM within 1 year of the employee’s separation.
See Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7 (2013).
The 1-year filing period may be waived if the employee is mentally incompetent
at the date of separation or became mentally incompetent within 1 year of
separation and the application is filed with OPM within 1 year from the date the
employee is restored to competency or is appointed a fiduciary, whichever is
earlier. Id. It is the employee’s burden to prove by preponderant evidence that
she was mentally incompetent during the relevant filing period. Chapman v.
Office of Personnel Management, 110 M.S.P.R. 423, ¶ 9 (2009).
¶6 Here, it is undisputed that the appellant applied for disability retirement on
May 20, 2014, almost 7 years after the 1-year filing period expired on August 3,
2007. IAF, Tab 4 at 207-16. Thus, the issue in this case is whether the appellant
showed that she was mentally incompetent during the filing period. In
determining whether an applicant was mentally incompetent for purposes of
waiving the time limit, the Board requires medical evidence supporting subjective
opinions of mental incompetence. Arizpe v. Office of Personnel Management,
88 M.S.P.R. 463, ¶ 9 (2001).
¶7 On review, the appellant claims, without more, that she was “diagnosed
with a medical condition and [is] disable[d].” PFR File, Tab 1 at 2. However,
she does not claim—either below or on review—that she was mentally
4
incompetent during the relevant filing period. Moreover, we have reviewed the
medical documentation contained in the record and there is no indication that the
appellant has ever been diagnosed with any condition that would render her
mentally incompetent. Therefore, the administrative judge properly found that
the appellant is not entitled to a waiver of the time limit for filing. ID at 3.
¶8 Because the appellant failed to file her application within the statutory
1-year time limit or show that a waiver of the time limit is warranted, we find
that OPM properly disallowed her disability retirement application as untimely
filed. Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
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.
2
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.
5
(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
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 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
6
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
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:
7
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(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. 3 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
3
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.
8
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.
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.