On appeal from Merit
Systems Protection Board.
John W.
Hart, of Virginia Beach, Virginia, argued for petitioner.
David R.
Feniger, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for respondent. On the
brief were David M. Cohen, Director; Donald E. Kinner, Assistant Director; and
E. Michael Chiaparas, Trial Attorney.
Before
MAYER, Chief Judge, CLEVENGER and GAJARSA, Circuit Judges.
CLEVENGER,
Circuit Judge.
Katherine
McLaughlin ("McLaughlin") seeks review of a final decision of the
Merit Systems Protection Board ("Board") denying her application for
disability retirement as untimely because it was filed after the one-year
statutory filing deadline.
McLaughlin v. Office of Pers. Mgmt., No.
DC844E020184-I-1 (M.S.P.B. Sept. 19, 2002). This case presents the question of
what standard of review we apply to a Board determination that a separated
employee is not entitled to a waiver of the one-year statutory filing deadline
because she was not mentally incompetent during the year following separation.
See 5 U.S.C. § 8453 (2000). Because the determination that an applicant is not
entitled to a waiver for mental incompetence does not go to the merits of the
factual determination of disability, we review for substantial evidence. In this
case, substantial evidence supports the Board's conclusion that McLaughlin was
not mentally incompetent during the statutory filing period, so we affirm the
Board's decision that she is not entitled to a waiver of the deadline.
I
By statute,
an application for disability retirement under the Federal Employees'
Retirement System1 ("FERS") may be considered on its merits if the
application is filed with the Office of Personnel Management ("OPM")
within one year of separation from service. Deerinwater v. Office of Pers.
Mgmt., 78 F.3d 570, 573 (Fed. Cir. 1996). The time limitation on filing the
application may be waived where the applicant was mentally incompetent during a
statutorily defined time. The relevant statutory section reads:
A claim may
be allowed under this subchapter only if application is filed with the Office
before the employee or Member is separated from the service or within 1 year
thereafter. This time limitation may be waived by the Office for an employee or
Member who, at the date of separation from service or within 1 year thereafter,
is mentally incompetent if the application is filed with the Office within 1
year from the date of restoration of the employee or Member to competency or
the appointment of a fiduciary, whichever is earlier.
5 U.S.C. §
8453 (2000).
As the
statute clearly states, a "claim may be allowed . . . only if the
application is filed . . . before . . . separat[ion] . . . or within 1 year
thereafter." Id. (emphasis added). The only exception is that the
"time limitation may be waived" if the employee is "mentally
incompetent" during the filing period. For this reason, an application
that is untimely and not entitled to a waiver for mental incompetence is not
considered. Deerinwater, 78 F.3d at 573 (Fed. Cir. 1996) (holding that OPM
lacks the authority to consider an untimely application); cf. Killip v. Office
of Pers. Mgmt., 991 F.2d 1564, 1570 (Fed. Cir. 1993) (holding that OPM is not
permitted to consider retirement elections where the statute does not grant
authority to do so).
II
McLaughlin
was employed by the Department of the Navy as a Supervisory Housing Management
Assistant. On January 29, 2000, McLaughlin resigned, citing the stress,
"minimal awards and/or promotions," and her feeling that she had
"not been recognized or appreciated for [her] cost-saving efforts and
workload." At the time of her retirement, McLaughlin was enrolled in FERS.
According to
a medical evaluation dated January 4, 2001, McLaughlin began experiencing
paresthesias in her right face, arm, and leg as early as November of 2000. Dr.
Nash, the physician performing the evaluation, opined that McLaughlin's
symptoms could have been caused by seizures or multiple sclerosis
("MS"). Dr. Nash's evaluation reported McLaughlin's mental status as
normal. To further investigate McLaughlin's symptoms, Dr. Nash ordered an EEG
and an MRI. On January 15, 2001, Dr. Nash reviewed the results and diagnosed
McLaughlin with MS. Dr. Nash again noted that [McLaughlin's] "mental
status and neurological examination are normal." Dr. Nash further noted
that McLaughlin "took the diagnosis very well." On January 19, 2001,
McLaughlin received a second opinion confirming the diagnosis of MS. The second
opinion was given by Dr. Holland. In a letter dated August 8, 2001, Dr. Holland
stated that McLaughlin's "other major complaint [on January 19, 2001] was
some depression."
On January
29, 2001, the one-year time period prescribed by 5 U.S.C. § 8453 for McLaughlin
to file an application for disability retirement expired.
On July 12,
2001, OPM received McLaughlin's application for disability retirement. The
application claimed McLaughlin's diseases or injuries to be MS, depression, and
migraines. It further stated that she had become disabled before January 28,
2001, but that the exact date was unknown.
On July 24,
2001, McLaughlin requested that OPM waive the statutory filing period. On
August 8, 2001, Dr. Holland wrote the above-referenced letter in support of McLaughlin.
The letter does not state that McLaughlin was mentally incompetent during the
year following her separation. On September 4, 2001, McLaughlin was evaluated
by Dr. Spiegel who concluded that: "It is belief that the patient was
profoundly depressed during the time period requiring her to act on [retirement
and health insurance] and, as a result of this depression was unable to do
so."
OPM denied
McLaughlin's request for a waiver because a review of the letters submitted by
Drs. Nash, Holland, and Spiegel did not provide sufficient medical
documentation that McLaughlin was incompetent during the relevant statutory
period. McLaughlin requested reconsideration, and OPM affirmed its initial
decision.
McLaughlin
appealed to the Board. The administrative judge ("AJ") considered the
medical evidence, as well as testimonial evidence from McLaughlin, her father,
and a friend. Concluding that the submitted "medical evidence does not
establish that the appellant was mentally incompetent during the one-year
filing period at issue," the AJ affirmed the decision of OPM. McLaughlin
v. Office of Pers. Mgmt., No. DC844E020184-I-1 (M.S.P.B. Apr. 12, 2002). The
decision became final when the Board denied McLaughlin's petition for review.
McLaughlin v. Office of Pers. Mgmt., No. DC844E020184-I-1 (M.S.P.B. Sept. 19,
2002). McLaughlin timely appealed to this court. We have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1295(a)(9) (2000).
III
In this
case, a former federal employee seeks review of a final decision of the Board
that she was not entitled to a waiver of the one-year statutory filing deadline
provided in 5 U.S.C. § 8453 because her submitted medical evidence did not
establish that she was mentally incompetent during the year following her
resignation. We first address the question of what standard of review we apply
to that decision.
A
As a general
rule, we affirm a decision of the Board unless it is arbitrary, capricious, an
abuse of discretion, not in accordance with the law, or unsupported by
substantial evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers.
Mgmt., 243 F.3d 1375, 1377 (Fed. Cir. 2001). However, in cases involving
disability retirement this court is precluded, in part, from that level of
review by Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985).
Lindahl
addressed an appeal arising under the Civil Service Retirement System
("CSRS").2 The statutory section at issue in Lindahl, section
8347(c), currently reads in relevant part: "The Office shall determine
questions of disability and dependency arising under this subchapter. Except to
the extent provided under subsection (d) of this section, the decisions of the
Office concerning these matters are final and conclusive and are not subject to
review." 5 U.S.C. § 8347(c) (2000). During the time relevant to this
appeal, the language, "concerning these matters are final and conclusive
and are not subject to review" has not changed. Compare 5 U.S.C. §
8347(c), with Lindahl, 470 U.S. at 773.
Lindahl
involved a former Navy employee who filed an application for disability
retirement based on the disability of "acute and chronic bronchitis."
Id. at 775. The Board affirmed OPM's denial of disability retirement because
Lindahl had not proved that his "disability [was] severe enough to prevent
useful, efficient, and safe performance of the essential duties of the position
from which [Lindahl was] seeking retirement." Id. at 776 (citations
omitted).
Lindahl's
case eventually made its way to this court, where, en banc, we held that the
language of section 8347(c) stating that "the decisions of [OPM]
concerning [questions of disability] are final and conclusive and are not
subject to review," prevented judicial review of Lindahl's case. Lindahl
v. Office of Pers. Mgmt., 718 F.2d 391, 393 (Fed. Cir. 1983) ("It is
difficult to conceive of a more clear-cut statement of congressional intent to
preclude review than one in which the concept of finality is thrice repeated in
a single sentence.").
Reversing,
the Supreme Court explained that our interpretation of "final and
conclusive and are not subject to review" was overbroad because we failed
to distinguish between the factual determinations concerning disability
questions and other questions of law and procedure pertaining to disability
retirement. In the Court's words:
We do not
share the Federal Circuit's certainty with respect to the plain import of the
statutory language. To begin with, while § 8347(c) plausibly can be read as
imposing an absolute bar to judicial review, it also quite naturally can be
read as precluding review only of OPM's factual determinations about
"questions of disability and dependency." Under this reading of §
8347(c)'s language, the factual" question" whether an applicant is
disabled is quite distinct from questions of what laws and procedures OPM must
apply in administering the Retirement Act. . . . [W]hen Congress intends to bar
judicial review altogether, it typically employs language far more unambiguous
and comprehensive than that set forth in § 8347. Congress' failure to use
similar language in § 8347(c) therefore reinforces the possibility that the
finality bar may extend only to OPM's factual determinations "with respect
to" disability and dependency questions.
Lindahl, 470
U.S. at 779-80 (footnote omitted; emphasis in original).
Finding this
reading supported by the legislative history, the Court held that while the
factual underpinnings of section 8347 disability determinations may not be
judicially reviewed, such review is available to determine whether there has
been a "substantial departure from important procedural rights, a
misconstruction of the governing legislation, or some error `going to the heart
of the administrative determination.'" Id. at 791 (citing Scroggins v.
United States, 397 F.2d 295, 297, cert. denied, 393 U.S. 952 (1968)). We have
recently reaffirmed that our review authority under Lindahl is constrained
regarding determinations of disability made in connection with applications for
disability retirement. See Licausi v. Office of Pers. Mgmt., No. 03-3150, slip
op. at 3 (Fed. Cir. Dec. 2, 2003).
When the
question is whether an applicant should be excused from normal filing deadlines
due to mental incompetence, our ordinary review authority is not affected. As
noted at the outset, review of whether an applicant should be excused from the
normal filing deadlines for mental incompetence does not require a review of a
disability determination. See Deerinwater, 78 F.3d at 573; Killip, 991 F.2d at
1570. This makes sense from a procedural standpoint, and likewise makes sense
because disability and mental incompetence for the purposes of waiving the
one-year filing deadline examine different facts. A person mentally incompetent
for purposes of the waiver may not be, ultimately, determined disabled.
Moreover, disability under the statute3 does not require mental incompetence.
Because review of a decision on mental incompetence during the statutory filing
period does not implicate the constraints of Lindahl,4 we affirm the Board
unless its decision is arbitrary, capricious, an abuse of discretion, not in
accordance with the law, or unsupported by substantial evidence. See 5 U.S.C. §
7703(c) (2000).
Although
Lindahl considered the standard of review permitted by 5 U.S.C. § 8347(c) of
the CSRS, we have applied the teachings of Lindahl to disability retirement
under 5 U.S.C. § 8461(d)5 of the FERS. See Anthony v. Office of Pers. Mgmt., 58
F.3d 620, 625-26 (Fed. Cir. 1995). Accordingly, section 8461(d), like section
8347(c), preserves our ordinary review authority when we are not reviewing
determinations of disability made in connection with applications for
disability retirement.
IV
Based on
McLaughlin's resignation date of January 29, 2000, the last day on which OPM
could have received her timely application was on January 29, 2001. 5 U.S.C. §
8453. In this case, OPM received McLaughlin's application on July 12, 2001.
Because of this court's holding in Deerinwater, OPM could not consider the
merits of McLaughlin's disability claim unless she could establish that she was
mentally incompetent during the statutory filing period. 78 F.3d at 573. Thus,
the question the Board considered was whether McLaughlin "showed that she
was mentally incompetent on January 29, 2000, or within one year
thereafter." McLaughlin v. Office of Pers. Mgmt., No. DC844E020184-I-1
(M.S.P.B. Apr. 12, 2002).
Section 8453
of the FERS provides the same time limitation and waiver provisions as 5 U.S.C.
§ 8337(b). Section 8337(b) applies to disability retirement arising under the
CSRS. The similarity of language and purpose, namely limiting the time allowed
for filing disability retirement applications and the granting of a waiver for
those mentally incompetent during the relevant period, strongly argues for the
same construction of each section. See Anthony, 58 F.3d at 626 (citing Oscar
Mayer & Co. v. Evans, 441 U.S. 750, 756, 760 (1979), and Northcross v.
Memphis Bd. of Educ., 412 U.S. 427, 428 (1973)).
We have held
that section 8337(b) is mandatory, not permissive. French v. Office of Pers.
Mgmt., 810 F.2d 1118 (Fed. Cir. 1987). That is, when an applicant establishes
mental incompetency during the relevant statutory period, OPM must treat the
application as timely. Id. at 1119. We have further held that, under section
8337(b), an applicant can establish mental incompetence and be entitled to a
waiver of the statutory deadline even if the applicant is "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"
during the relevant period. Id. at 1120.
Applying the
standard from French, the Board reviewed medical evidence as well as testimony
from McLaughlin, her father, and a friend. That evidence included records of
medical examinations administered by Dr. Nash during the statutory filing
period. They report McLaughlin's mental status as normal. Dr. Holland's letter
reflects only that McLaughlin had "some depression" before the end of
the statutory period. Finally, Dr. Spiegel performed an "Initial
Psychiatric Evaluation" on McLaughlin in September of 2001, approximately
eight months after the statutory deadline. At the end of his report, in the
"Plan" section, Dr. Spiegel notes: "It is belief that the
patient was profoundly depressed during the time period requiring her to act on
[retirement and health insurance] and, as a result of this depression was
unable to do so."
The
strongest medical evidence in the record to support mental incompetence is the
foregoing medical assessment by Dr. Spiegel. The Board discounted somewhat Dr.
Spiegel's assessment on the ground that his evaluation was dated September 4, 2001,
considerably after the end of the filing period. To the extent the Board
discounted Dr. Spiegel's assessment on the ground that it was written after the
filing period, we disagree. The mere fact that a medical assessment is
committed to paper outside the filing period is not probative of whether the
applicant was mentally incompetent during the filing period. Even so, Dr.
Spiegel's assessment is not dispositive in favor of McLaughlin because Dr.
Spiegel never asserts that he personally observed McLaughlin during the filing
period.
A Board
decision is unsupported by substantial evidence when it lacks "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,
933 (Fed. Cir. 1984) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938)).
Were Dr.
Spiegel's assessment the only evidence of record, no doubt the Board could have
concluded that substantial evidence supported McLaughlin's claim to mental
incompetence during the statutory period. However, as noted above, the record
contains Dr. Nash's contemporaneous assessments of McLaughlin that point toward
mental competence. In this circumstance, we cannot say the Board's decision is
unsupported by substantial evidence.
COSTS
No costs.
AFFIRMED
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Notes:
1. See 5 U.S.C. §§ 8401-8479 (2000).
2. Currently, 5 U.S.C. §§ 8331-8351 (2000).
3. See 5 U.S.C. § 8451(a)(1)(B) (2000) ("For purposes
of this subsection, an employee shall be considered disabled only if the
employee is found by the Office to be unable, because of disease or injury, to
render useful and efficient service in the employee's position."); cf. 5
C.F.R. § 844.102 (2003) ("Disabled and disability means unable or inability,
because of disease or injury, to render useful and efficient service in the
employee's current position.") (emphasis in original).
4. We note that the government agrees with our conclusion
that Lindahl is not applicable to the determination of our standard of review
of questions of waiver based on mental incompetence.
5. This section also contains the so-called finality clause:
"the decisions of [OPM] concerning these matters are final and conclusive
and are not subject to review." 5 U.S.C. § 8461(d) (2000).
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