Johnson v. Opm , 664 F. App'x 919 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRENDA JOHNSON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-2005
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831E-15-0377-I-1.
______________________
Decided: November 3, 2016
______________________
BRENDA JOHNSON, San Diego, CA, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN.
______________________
Before MOORE, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
2 JOHNSON v. OPM
Brenda Johnson appeals the Final Order of the Merit
Systems Protection Board (“MSPB”), which denied
Ms. Johnson’s petition for review of an administrative
judge’s Initial Decision denying as untimely her applica-
tion for disability retirement annuity and affirmed the
Office of Personnel Management’s (“OPM”) reconsidera-
tion decision. See Johnson v. Office of Pers. Mgmt.,
No. SF-831E-15-0377-I-1, 2016 WL 910505 (M.S.P.B.
Mar. 9, 2016). We affirm.
BACKGROUND
Between 1973 and 1990, Ms. Johnson was employed
by several Federal Government agencies. Resp’t’s
App. 30–34. On May 5, 1990, Ms. Johnson resigned from
her last federal position, id. at 30, and subsequently
withdrew the retirement contributions she made during
her employment, id. at 35–36.
In July 2014, Ms. Johnson submitted a Statement of
Disability to OPM seeking disability retirement annuity
because of a right wrist injury that allegedly occurred in
1984 as a result of her job duties with the Government.
Id. at 37–51. The OPM responded by letter, stating that
Ms. Johnson’s application did not include the required
Standard Form 2801 (“SF-2801”), Application for Imme-
diate Retirement. Id. at 52. In August 2014, Ms. Johnson
submitted the SF-2801 to complete her application. Id.
at 53–58.
In December 2014, the OPM informed Ms. Johnson
that “[t]he law requires that applications for disability
retirement [annuity] be filed with OPM either prior to
separation from the service or within one year thereafter,”
unless the “former employee was mentally incompetent at
the time of separation or became incompetent within one
year thereafter.” Id. at 59. Because “[r]eview of the
record show[ed] that [Ms. Johnson] separated from the
[f]ederal service on May 5, 1990” and “the applica-
tion . . . was not filed with OPM until July 15, 2014,” the
JOHNSON v. OPM 3
OPM informed Ms. Johnson that her application would be
dismissed absent additional evidence that waiver was
appropriate. Id.; see id. at 61–62 (dismissing Ms. John-
son’s application). Ms. Johnson timely filed a reconsider-
ation request, appending a physician’s consultation report
and other documentation regarding her wrist injury, id.
at 65–77, but the OPM denied Ms. Johnson’s reconsidera-
tion request on the same grounds, id. at 81–83.
Ms. Johnson appealed the OPM’s denial of her appli-
cation to the MSPB. Id. at 86. In its Initial Decision, the
Administrative Judge affirmed the OPM’s denial of Ms.
Johnson’s reconsideration request on all grounds. Id.
at 22–23. Ms. Johnson filed a petition for review of the
Initial Decision. Johnson, 2016 WL 910505 at ¶ 1. In its
Final Order, the MSPB denied Ms. Johnson’s petition,
holding that she “ha[d] not established any basis . . . for
granting the petition for review,” and affirmed the Admin-
istrative Judge’s Initial Decision. Id.
Ms. Johnson appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review and Filing Requirements
We set aside the MSPB’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence . . . .” 5 U.S.C. § 7703(c) (2012). We review the
MSPB’s legal conclusions de novo. Welshans v. U.S.
Postal Serv., 550 F.3d 1100, 1102 (Fed. Cir. 2008).
An application for disability retirement annuity must
be filed with the OPM “before [an] employee . . . is sepa-
rated from the service or within 1 year thereafter.”
5 U.S.C. § 8337(b). That time limitation may be waived if,
“at the date of separation from service or within 1 year
4 JOHNSON v. OPM
thereafter,” the applicant was “mentally incompetent,”
and “the application is filed with the [OPM] within [one]
year from the date of restoration of . . . competency.” Id.
II. Ms. Johnson’s Application Was Untimely
The sole issue before the court is whether the OPM
properly rejected Ms. Johnson’s application as untimely, a
conclusion that the MSPB affirmed. We agree that
Ms. Johnson’s application was untimely.
The record demonstrates, and the parties do not con-
test, that Ms. Johnson separated from federal service on
May 5, 1990. Resp’t’s App. 30. As a result, the statutory
deadline for filing occurred on May 5, 1991. And because
the facts are not in dispute, we must assess whether the
MSPB properly applied the law to these undisputed facts.
The MSPB properly concluded that the time limit in
§ 8337(b) barred Ms. Johnson’s application as untimely.
Ms. Johnson filed her application in 2014, i.e., 23 years
after the statutory filing deadline mandated by § 8337(b).
As to waiver, the MSPB held that the evidence submitted
by Ms. Johnson said nothing about her mental status at
the time she ended her federal service, Johnson, 2016 WL
910505 at ¶¶ 10−15, and nothing in the record warrants a
different conclusion. 1 Thus, based on the record before it,
the statute required the OPM to reject Ms. Johnson’s
application as untimely, and the MSPB properly affirmed
the OPM’s decision to do so.
1 At various points in her informal brief, Ms. John-
son appears to raise her mental status anew. See Pet’r’s
Br. 3, 11, 18–19. However, she does not substantiate
these assertions with evidence, and unsubstantiated
assertions do not equal evidence. See Lucent Techs., Inc.
v. Gateway, Inc., 580 F.3d 1301, 1327 (Fed. Cir. 2009)
(“[S]peculation does not constitute substantial evidence.”
(internal citations and quotation omitted)).
JOHNSON v. OPM 5
Finally, Ms. Johnson alleges violations of the Federal
Employee Compensation Act (“FECA”), 5 U.S.C. §§ 8101–
8193, unspecified medical guidelines requiring that the
patient reach maximum medical improvement (“MMI”)
before a disability determination is reached, and viola-
tions of the Civil Code of California, see Pet’r’s Br. 10;
Johnson v. Office of Pers. Mgmt., No. 2016-2005, Docket
No. 28 at 2–3 (Fed. Cir. Aug. 3, 2016); id., Docket No. 29
at 2–3 (Fed. Cir. Aug. 3, 2016). These arguments are
meritless. First, the FECA precludes judicial review of
decisions made by the Secretary of Labor pursuant to that
statutory scheme. See 5 U.S.C. § 8128(b)(2) (stating that
the Secretary’s actions under this subchapter are “not
subject to review by . . . a court”). Second, the require-
ments of unspecified medical guidelines do not supersede
the filing requirements in § 8337(b), and even if they did,
Ms. Johnson’s 2014 application still was filed more than
one year after she reached MMI in 2006. Pet’r’s App. 4.
Finally, California law is inapplicable because federal law
(i.e., § 8337(b)) is determinative of Ms. Johnson’s appeal.
See LaRochelle v. Office of Pers. Mgmt., 774 F.2d 1079,
1080 (Fed. Cir. 1985) (“OPM will consult state law where
federal law is not determinative . . . .”).
CONCLUSION
We have considered Ms. Johnson’s remaining argu-
ments and find them unpersuasive. For these reasons,
the Merit Systems Protection Board’s Final Order is
AFFIRMED
COSTS
No costs.