Cox v. Office of Personnel Management ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
ELIZABETH B. COX,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3147
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CH831E110319-I-1.
___________________________
Decided: November 15, 2011
___________________________
ELIZABETH B. COX, Mountain Home, Idaho, pro se.
CHRISTOPHER A. BOWEN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director.
__________________________
COX v. OPM 2
Before BRYSON, MOORE, and REYNA, Circuit Judges.
Per Curiam.
Elizabeth B. Cox appeals from a denial of her petition
for review by the Merit Systems Protection Board (Board)
affirming the Office of Personnel Management’s (OPM’s)
decision denying her application for disability retirement
because it was untimely filed. Cox v. Office of Pers.
Mgmt., No. CH831E11-319-I-1, slip op. at 1 (M.S.P.B.
Apr. 6, 2011). For the reasons set forth below, we affirm.
Ms. Cox was separated from the U.S. Postal Service
on October 19, 2007. The OPM received Ms. Cox’s appli-
cation for disability retirement on June 28, 2010. Disabil-
ity retirement applications must be filed within one year
after an employee separates from service. 5 U.S.C.
§ 8337(b). Ms. Cox contended that her chronic depression
and post-traumatic stress disorder prevented her from
timely filing her application within one-year after her
separation. The OPM, however, rejected this argument
and found that Ms. Cox was sufficiently competent to
have filed an application for disability retirement within
one-year of her separation from the U.S. Postal Service.
The Board affirmed, and Ms. Cox timely appealed. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
We affirm the Board’s decision unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). “Substantial evidence is ‘such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.’” McEntee v. Merit Sys. Prot. Bd.,
404 F.3d 1320, 1325 (Fed. Cir. 2005) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The
relevant question is not what we would decide de novo,
3 COX v. OPM
but whether the determination on appeal is supported by
substantial evidence on the record. Parker v. U.S. Postal
Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987).
A claim for retirement disability is allowed “only if” it
is filed before the employee “is separated from the service
or within 1 year thereafter.” 5 U.S.C. § 8337(b). The
“time limitation may be waived” if the applicant is “men-
tally incompetent” during the filing period. 5 U.S.C.
§ 8337(b). Mental incompetence may be established even
if the applicant is “‘one having some minimal capacity to
manage his own affairs, and not needing to be committed.
The [applicant] is not required to have been a raving
lunatic continuously’ during the relevant period.”
McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1368
(Fed. Cir. 2004) (quoting French v. Office of Pers. Mgmt.,
810 F.2d 1118, 1120 (Fed. Cir. 1987)).
Ms. Cox asserts that the medical evidence shows that
her mental illness prevented her from timely filing the
application. In particular, Ms. Cox cites to medical evi-
dence from 2005 until present, including the notes of a
psychiatric nurse practitioner who met with Ms. Cox in
2007 and 2008 (the relevant period). The Board recog-
nized that Ms. Cox suffered from mental health issues
between October 2007 and October 2008, but found that
the evidence did not establish that Ms. Cox was mentally
incompetent during this period. Cox, slip op. at 3, 6.
The psychiatric nurse practitioner’s notes during this
period support the Board’s decision that Ms. Cox was not
mentally incompetent. The notes indicate that Ms. Cox
engaged in a variety of activities during the year after she
was separated from the Postal Service. For example, Ms.
Cox helped a neighbor prepare for her daughter’s wed-
ding, went out with friends, sought employment, joined a
women’s group in her neighborhood for socialization, and
COX v. OPM 4
began building close friendships. In February 2008, the
notes describe Ms. Cox’s mood as “stable and euthymic,”
and her affect as bright and reactive. In March 2008, the
notes again describe Ms. Cox’s mood as “euthymic” and
her affect as bright and reactive. The notes also show
that Ms. Cox was following her case against the Postal
Service for wrongful termination, that she took “in stride”
the news that she lost her case, and that she planned to
appeal the decision.
In light of this evidence, we conclude that substantial
evidence supports the Board’s decision that Ms. Cox was
not incompetent during this period. We have considered
Ms. Cox’s additional arguments on appeal and find them
to be without merit.
AFFIRMED
COSTS
No costs.