Case: 22-1984 Document: 29 Page: 1 Filed: 04/04/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHY P. WEBB,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2022-1984
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-844E-16-0084-I-1.
______________________
Decided: April 4, 2023
______________________
KATHY P. WEBB, Pine Bluff, AR, pro se.
JOSEPH ALAN PIXLEY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by REGINALD
THOMAS BLADES, JR., BRIAN M. BOYNTON, DOUGLAS GLENN
EDELSCHICK, PATRICIA M. MCCARTHY.
______________________
Before LOURIE, TARANTO, and STARK, Circuit Judges.
Case: 22-1984 Document: 29 Page: 2 Filed: 04/04/2023
2 WEBB v. OPM
PER CURIAM.
Kathy P. Webb was separated from federal service on
August 3, 2006. On May 23, 2014, almost eight years after
her separation from federal service, Ms. Webb applied for
disability retirement under the Federal Employees Retire-
ment System (FERS). The Office of Personnel Manage-
ment (OPM) disallowed Ms. Webb’s application because
her application was not filed within the one-year statutory
deadline prescribed by
5 U.S.C. § 8453. After unsuccess-
fully seeking reconsideration of OPM’s decision, Ms. Webb
appealed to the Merit Systems Protection Board. An initial
Board decision affirmed OPM’s decision, and so did the fi-
nal Board decision. Webb v. Office of Personnel Manage-
ment, No. DA-844E-16-0084-I-1,
2022 WL 1763200
(M.S.P.B. May 31, 2022) (Final Order). Because Ms. Webb
has not shown that her application was filed within the
statutory deadline or that waiver of the one-year time limit
is warranted, we affirm the Board decision.
I
Ms. Webb was employed as a security guard by the De-
partment of the Army in a term appointment that expired
on August 3, 2006. On May 23, 2014, she applied for disa-
bility retirement under FERS. OPM disallowed Ms.
Webb’s application on May 11, 2015, because the applica-
tion was not timely filed. She requested reconsideration of
the OPM decision, which OPM denied on October 26, 2015,
reciting the 2006 separation and 2014 application dates
and explaining that
5 U.S.C. § 8453 requires an application
for disability retirement under FERS to be filed with OPM
“before the employee . . . is separated from the service or
within one year thereafter.” Appx. 31. OPM also noted the
limited basis for excusing untimeliness: a finding that the
employee, “at the date of separation from service or within
one year thereafter, [was] mentally incompetent.” Appx.
31 (quoting 5 U.S.C § 8453).
Case: 22-1984 Document: 29 Page: 3 Filed: 04/04/2023
WEBB v. OPM 3
On November 12, 2015, Ms. Webb appealed OPM’s re-
consideration decision to the Board, asserting that OPM
erred because Ms. Webb was “dismissed from [her] job be-
cause of [a] medical condition.” Appx. 28. In a telephonic
conference before the Board, Ms. Webb “did not dispute the
fact that her application for disability retirement was un-
timely filed and she did not claim that she was mentally
incompetent during the relevant time period.” Appx. 11–
12. On October 18, 2016, the assigned administrative
judge of the Board issued an initial decision affirming
OPM’s reconsideration decision because it was undisputed
that Ms. Webb “untimely filed” her application, “the only
exception to the one-year filing requirement is in the case
where the employee is mentally incompetent,” and Ms.
Webb did not claim, or submit evidence supporting a claim,
“that she was prevented during the one-year time limit by
mental incompetence from timely filing her application.”
Appx. 12.
Ms. Webb petitioned for full Board review on October
25, 2016, challenging the initial decision on the ground that
she “was laid off . . . because [she] was diagnosed with a
medical condition” and is “disable[d].” Appx. 34. The
Board denied Ms. Webb’s petition for full Board review on
May 31, 2022, affirming the initial decision. The Board ex-
plained that because it was “undisputed” that Ms. Webb
applied for disability retirement outside the statutory one-
year filing period, she needed to show that she was “men-
tally incompetent during the filing period” for the time
limit to be waived and for her application to be considered.
Final Order at ¶ 6. The Board determined that Ms. Webb’s
statement that she was “diagnosed with a medical condi-
tion” and is “disable[d]” was not equivalent to a claim that
she was “mentally incompetent during the relevant filing
period.” Id. at ¶ 7. In the absence of any medical documen-
tation indicating that Ms. Webb had been rendered “men-
tally incompetent” during the relevant period, the Board
Case: 22-1984 Document: 29 Page: 4 Filed: 04/04/2023
4 WEBB v. OPM
found that OPM properly determined that Ms. Webb was
not entitled to a time-limit waiver. Id. at ¶¶ 7–8.
Ms. Webb subsequently filed a petition with the Equal
Employment Opportunity Commission (EEOC) on June 23,
2022, alleging that she was separated from federal service
before her “term was . . . up” and requesting review of the
Board’s final decision. On July 11, 2022, EEOC denied con-
sideration of Ms. Webb’s appeal, as the Board “did not ad-
dress any claims” within EEOC’s jurisdiction, and so,
EEOC did not have jurisdiction to review the decision.
EEOC Decision No. 2022003728,
2022 WL 3153856, at *1
(July 11, 2022) (EEOC Decision); see
29 C.F.R. § 1614.302.
Ms. Webb appealed the Board’s May 31 decision to this
court on June 29, 2022, which was within the sixty days
permitted by
5 U.S.C. § 7703(b)(1)(A). As explained below,
we have jurisdiction over her appeal under
28 U.S.C. §
1295(a)(9).
II
A
As a threshold matter, we must address whether we
have jurisdiction over Ms. Webb’s appeal. In her State-
ment Concerning Discrimination, Ms. Webb indicated that
“she argued before the Board that her adverse employment
action was attributable to discrimination and that she
wishes to continue to pursue her discrimination claims.”
Order to Show Cause at 1–2, Aug. 29, 2022, ECF No. 18
(summarizing Ms. Webb’s Statement Concerning Discrim-
ination); Statement Concerning Discrimination, July 21,
2022, ECF No. 8.
We lack jurisdiction to hear a “mixed case” from the
Board—one involving certain discrimination claims as well
as other claims—unless the petitioner drops the discrimi-
nation claims. Harris v. Securities & Exchange Commis-
sion,
972 F.3d 1307, 1318 (Fed. Cir. 2020); see Perry v.
Merit Systems Protection Board,
137 S. Ct. 1975, 1982,
Case: 22-1984 Document: 29 Page: 5 Filed: 04/04/2023
WEBB v. OPM 5
1988 (2017) (“[I]n mixed cases . . ., the district court is the
proper forum for judicial review.”);
5 U.S.C. § 7703(b)(1)(B)
(granting our court jurisdiction over “a final order or final
decision of the Board that raises no challenge to the Board’s
disposition of allegations of a prohibited personnel prac-
tice” covered by, among other law, federal antidiscrimina-
tion law);
28 U.S.C. § 1295(a)(9). “A mixed case is one in
which a federal employee (1) complains of having suffered
a serious adverse personnel action appealable to the
[Board] and (2) attributes the adverse action, in whole or
in part, to bias prohibited by federal antidiscrimination
laws.” Harris, 972 F.3d at 1317.
On August 29, 2022, we stayed the briefing schedule in
this case and directed the parties “to show cause whether
this case should be dismissed or transferred” to a district
court in light of limits on our jurisdiction to hear certain
appeals from Board decisions. Order to Show Cause at 2,
Aug. 29, 2022, ECF No. 18. Ms. Webb did not file a re-
sponse to this order, and we lifted the stay on briefing on
November 16, 2022. The government argues that this ap-
peal is not a mixed case because Ms. Webb did not raise to
the Board an allegation that, in disallowing her disability
retirement application, OPM violated federal antidiscrimi-
nation laws. We agree.
A claim for disability retirement is not a discrimination
claim. See, e.g., Dedrick v. Berry,
573 F.3d 1278, 1280–81
(Fed. Cir. 2009). Although Ms. Webb claimed in some of
her filings that her separation from federal service was due
to a “medical condition,” Appx. 28 (appeal of OPM’s final
decision to the Board); Appx. 34 (appeal for full Board re-
view), or being “disable[d],” Appx. 34, neither of those
claims allege that the OPM decision challenged before the
Board—the decision disallowing Ms. Webb’s disability ap-
plication—was based, in any part, on discriminatory
grounds. See also Wallace v. Merit Systems Protection
Board,
728 F.2d 1456, 1459 (Fed. Cir. 1984) (“[W]e do not
agree . . . that the mere pleading of discrimination totally
Case: 22-1984 Document: 29 Page: 6 Filed: 04/04/2023
6 WEBB v. OPM
precludes the exercise of jurisdiction by this court.”). At no
point has Ms. Webb alleged that OPM’s disallowance of her
disability retirement application was a “serious adverse ac-
tion prompted, in whole or in part, by . . . [a] violation of
federal antidiscrimination laws.” See Perry,
137 S. Ct. at
1988. This determination is consistent with EEOC’s denial
of consideration of Ms. Webb’s appeal of the same Board
decision because the Board did not address a discrimina-
tion claim (and so, challenges to the Board’s decision were
outside EEOC’s jurisdiction). EEOC Decision,
2022 WL
3153856, at *1. Ms. Webb’s appeal challenging the Board
decision affirming the disallowance of her disability retire-
ment application, therefore, is not a mixed case, so we have
jurisdiction over her appeal under
28 U.S.C. § 1295(a)(9).
See also McLaughlin v. Office of Personnel Management,
353 F.3d 1363, 1365 (Fed. Cir. 2004) (reviewing a Board
decision affirming OPM’s denial of a request for waiver of
the one-year time limit prescribed in
5 U.S.C. § 8453).
B
We must affirm the Board’s decision unless it is “(1) ar-
bitrary, 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(c). While “our review authority . . . is constrained
regarding determinations in connection with applications
for disability retirement,” “[w]hen the question is whether
an applicant should be excused from normal filing dead-
lines due to mental incompetence, our ordinary review au-
thority is not affected.” McLaughlin,
353 F.3d at 1367.
It remains undisputed that Ms. Webb filed her applica-
tion for disability retirement after the one-year statutory
window set out in
5 U.S.C. § 8453. For Ms. Webb’s appli-
cation to be considered, therefore, this statutory time limi-
tation would have to be waived.
5 U.S.C. § 8453. OPM may
waive the one-year time limit, however, only if Ms. Webb
Case: 22-1984 Document: 29 Page: 7 Filed: 04/04/2023
WEBB v. OPM 7
shows that “at the date of separation of service or within 1
year thereafter,” she was “mentally incompetent.”
Id. At
no point has Ms. Webb claimed, or put forward evidence
supporting a claim, that she was mentally incompetent
during the relevant filing period. Ms. Webb’s claims that
she was “diagnosed with a medical condition” and is “disa-
ble[d],” Appx. 28; Appx. 34; Ms. Webb’s Br. at 3, are not
equivalent to a claim that she was “mentally incompetent,”
5 U.S.C. § 8453. See McLaughlin,
353 F.3d at 1367
(“[D]isability 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. More-
over, disability under the statute does not require mental
incompetence.” (footnote omitted)); Rapp v. Office of Per-
sonnel Management,
483 F.3d 1339, 1341 (Fed. Cir. 2007)
(“Notably, however, mental disability and mental incompe-
tence are not the same thing.”). The Board’s decision,
therefore, is not arbitrary, capricious, an abuse of discre-
tion, contrary to law, or unsupported by substantial evi-
dence.
III
For the foregoing reasons, we affirm the decision of the
Board.
The parties shall bear their own costs.
AFFIRMED
