Bass v. Office of Personnel Management ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
HATTIE R. BASS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2010-3105
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. SF831E080563-I-2.
___________________________
Decided: December 27, 2010
___________________________
RONALD P. ACKERMAN, Law Offices of Ronald P. Acker-
man, of Culver City, California, for petitioner.
TARA K. HOGAN, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, of Washington, DC, for respondent. With her on the
brief were TONY WEST, Assistant Attorney General, JEANNE
E. DAVIDSON, Director, and BRIAN M. SIMKIN, Assistant
Director.
BASS v. OPM 2
__________________________
Before NEWMAN, PLAGER, AND PROST, Circuit Judges.
PER CURIAM.
Ms. Hattie R. Bass appeals the decision of the Merit
Systems Protection Board denying her application for re-
tirement disability benefits. Bass v. Office of Personnel
Mgmt., No. SF831E080563-I-2 (M.S.P.B. Jan. 25, 2010).
The Board determined that Ms. Bass’s application was
untimely and that the untimeliness was not excused by
reason of mental incompetence. We affirm.
BACKGROUND
In accordance with section 8337(a) of title 5, an em-
ployee may apply for disability retirement after at least five
years of civilian service if “unable, because of disease or
injury, to render useful and efficient service in the em-
ployee's position and is not qualified for reassignment.”
Approved applicants receive an annuity as determined by
the Department of Labor. See 5 U.S.C. §8337(a), (g) (2000).
Applications must be filed before the employee is separated
from the service or within one year thereafter. However, an
application will be deemed timely if the applicant can estab-
lish that she was “mentally incompetent” during the rele-
vant filing period and the application is filed within one
year after the restoration of competency or the appointment
of a fiduciary. §8337(b).
Ms. Bass resigned from service with the Department of
Veterans Affairs on July 21, 1993 after nineteen years of
employment. At the time of her resignation, Ms. Bass was
experiencing psychological problems. Ms. Bass testified
that the problems were “serious,” and included verbal
3 BASS v. OPM
outbursts and urinary incontinence that forced her to miss
work. Medical records demonstrate that during the 1993-
1994 time period Ms. Bass was evaluated and treated by
various physicians due to episodes of mental illness. On
November 24, 1993 she was diagnosed with subchronic
paranoid schizophrenia at the UCLA Medical Center. In
January 1994 she was involuntarily hospitalized as a dan-
ger to herself and others.
However, during the same time frame Ms. Bass’s regu-
lar psychiatrist Dr. Gilbert described her as “logical and
coherent without delusion or involuntary movements.” Dr.
Gilbert’s reports reflect that Ms. Bass resigned from her job
at the VA because she believed that she had cancer and
wanted to work part-time to be able to enjoy her remaining
life. During her November 1993 evaluation at UCLA, Ms.
Bass told her physician that her paranoia did not “really
prevent her [from] carry[ing] out her daily activity and
looking for a job.” She denied all psychotic symptoms.
From February 1994 until July 1994, Ms. Bass was treated
at Long Beach Mental Hospital where she was medicated
and supervised. Social worker Mercy Cotton noted that Ms.
Bass’s judgment was intact and her thought associations
unimpaired. No psychiatric markers were deemed severe
and she was deemed to be independent on all basic living
skills.
Ms. Bass first applied for disability retirement on Octo-
ber 20, 1995. OPM denied her application on the ground
that it had been filed more than one year after her resigna-
tion from the VA. Ms. Bass filed a second application on
May 8, 2007. This application was not ruled upon by OPM
in light of the 1995 denial. On June 27, 2008 Ms. Bass
appealed these decisions to the Board.
BASS v. OPM 4
After a hearing involving four witnesses, the Adminis-
trative Judge found that from July 21, 1993 to May 8, 2007
Ms. Bass was impaired by chronic paranoid schizophrenia
and at no time since her diagnosis was she “recovered” from
her disease. However, the Administrative Judge also found
that Ms. Bass was “functional” during the relevant time
periods and “more than minimally able to manage her
affairs.” For example, Ms. Bass was found to have substan-
tially handled her own bills and financial affairs, main-
tained an apartment, drove and maintained an automobile,
and applied for benefits from the Social Security Admini-
stration. The Board denied her application as untimely
filed, and not excused by mental incompetence. On appeal,
Ms. Bass argues that “the overwhelming evidence” supports
a finding that she was mentally incompetent during signifi-
cant portions of the relevant time periods following her
resignation.
DISCUSSION
We are charged with reviewing the Board’s actions, find-
ings, and conclusions to ensure that they are not (1) arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence. 5 U.S.C. §7703(1998).
The standard for waiver of timely filing under §8337 is
“an inability to handle one's personal affairs because of
either physical or mental disease or injury.” Rapp v. Office
of Personnel Mgmt., 483 F.3d 1339, 1341 (Fed. Cir. 2007).
“The claimant is not required to have been a raving lunatic
continuously” in order to be deemed mentally incompetent
to apply for benefits. French v. Office of Personnel Mgmt.,
810 F.2d 1118, 1120 (Fed. Cir. 1987). However, the court
5 BASS v. OPM
has also held that a person who suffers one or more mental
disabilities is not necessarily mentally incompetent to file
an application for benefits. See McLaughlin v. Office of
Personnel Mgmt., 353 F.3d 1363, 1367 (Fed. Cir. 2004
(“[W]hether an applicant should be excused from the normal
filing deadlines for mental incompetence does not require a
review of a disability determination.”) These fact-driven
agency determinations are reviewed for support by substan-
tial evidence.
The Board found that although Ms. Bass was afflicted
by chronic paranoid schizophrenia from 1993 to 2007, she
was not “mentally incompetent” for the purposes of §8337(b)
because she was sufficiently functional in her personal
affairs. This finding is supported by substantial evidence.
Ms. Bass’s current psychiatrist, Sam Smith, M.D., testified
that Ms. Bass’s condition varies in severity and while some
patients are “devastated” by the ailment, others are “func-
tional.” He testified that Ms. Bass’s case manager during
the relevant time period believed that Ms. Bass was “func-
tional,” although her case was “a very inconsistent picture.”
Ms. Bass herself testified that she took care of her own
finances to a large degree, and when she “was thinking
halfway decent [she] would go to the food bank and get
food.” She also went to the Long Beach Clinic once or twice
a month to receive treatment and medication. Two other
witnesses, Ms. Bass’s brother and a close friend, testified
that Ms. Bass handled her personal finances and other day-
to-day tasks substantially on her own.
Ms. Bass argues that under the Board’s decision in Hass
v. Office of Personnel Mgmt., 84 M.S.P.R. 110, 114 (1999),
she need only demonstrate incompetency for “significant
portions” of the relevant time period to support waiver of
the application deadline. The Board held in Hass that the
inference of continuous incompetency can be contradicted by
BASS v. OPM 6
“preponderant evidence to the contrary.” Id. Although Ms.
Bass clearly had episodes in 1993 and 1994, substantial
evidence supports the Board’s finding that Ms. Bass was
able to manage her personal affairs during the statutory
period. She was receiving treatment and medication on a
regular basis, and her episodes were generally not long
lasting.
Deference must be given to the findings of an adminis-
trative factfinder, particularly when there was extensive
witness testimony and a fully developed argument. See
Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir.
2004). “The possibility of drawing two inconsistent conclu-
sions from the evidence does not prevent an administrative
agency's finding from being supported.” Id. Here the
Board’s finding that Ms. Bass was “more than minimally
able to manage her affairs during most of the period at
issue” was supported by substantial credible evidence, and
the correct legal standard was applied. Accordingly, the
Board’s decision must be affirmed.
Each party shall bear its costs.
AFFIRMED.