Anthony W. Johnson v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY W. JOHNSON, DOCKET NUMBER
Appellant, DA-844E-16-0061-I-1
v.
OFFICE OF PERSONNEL DATE: December 12, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony W. Johnson, Houston, Texas, pro se.
Delores A. Saunders, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a timely petition for review of an initial decision
that affirmed the final decision of the Office of Personnel Management (OPM)
denying his application for disability retirement as untimely filed. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orde rs,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Boar d
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant was employed as a Rural Carrier by the U.S. Postal Service
and he resigned on October 20, 2007. Initial Appeal File (IAF), Tab 5 at 205. 2
The notice of personnel action documenting his separation from service stated
that he resigned voluntarily for personal reasons. Id. Five years later, on
November 20, 2013, OPM received the appellant’s application for disability
retirement. Id. at 27. In his statement of disability, the appellant asserted that he
suffered from a medical condition and a head injury, which affected his memory,
his ability to pay attention, and his decision-making skills. Id. at 44. He also
stated that he had a neck fracture, which caused him pain when he lifted anything,
and that the Social Security Administration (SSA) had approved his disability
claim. Id.2
In November 2007, the appellant applied for a refund of the retirement deductions that
were withheld from his salary during his Federal service. IAF, Tab 5 at 226-27. OPM
refunded those deductions. Id. at 217-18. We note that, if an appellant is eligible for
disability retirement when he withdrew his contributions, then he may still receive
disability retirement. See Pagum v. Office of Personnel Management, 66 M.S.P.R. 599,
602 (1995).
3
¶3 OPM issued an initial decision that denied the appellant’s application for
disability retirement because it was filed more than 1 year after his separation
from service and, therefore, was untimely filed. Id. at 27. OPM found that,
although the law permits a waiver of the time limit if an employe e shows that he
was mentally incompetent at the time of separation from service or within 1 year
thereafter, the appellant did not show that he was mentally incompetent when he
separated from service on October 20, 2007, or within the 1-year period ending
on October 20, 2008. Id. The appellant’s representative filed a request for
reconsideration with OPM on the appellant’s behalf. Id. at 38-39. The
representative provided OPM with a June 18, 2007 evaluation from a clinical
psychologist stating that the appellant had been diagnosed with a medical
condition and poly substance dependence in remission. Id. at 6, 9, 11-19. His
representative also provided OPM with a July 6, 2009 clinical interview and
mental status examination prepared by a licensed psychologist and other medical
records. Id. at 4, 21-26. OPM issued a reconsideration decision sustaining its
original decision dismissing his application as untimely filed. Id. at 5.
¶4 The appellant, acting pro se, appealed OPM’s decision to the Board, and he
requested a hearing. IAF, Tab 1 at 3, 7. The administrative judge informed the
appellant of his burden of proving that his disability retirement application was
timely or that he was entitled to a waiver of the time limit because he was
mentally incompetent during the relevant time period for filing. IAF, Tab 8 at 2.
¶5 After holding the appellant’s requested hearing, the administrative judge
issued an initial decision that affirmed OPM’s reconsideration decision denying
the appellant’s application for disability retirement as untimely filed. IAF,
Tab 11, Initial Decision (ID) at 1, 8-10. The administrative judge found that a
disability retirement application under the Federal Employees’ Retirement System
(FERS) must be filed with OPM before the employee is separated from service or
within 1 year thereafter, unless the employee shows that he was mentally
incompetent at the time of separation or within the 1-year filing period thereafter,
4
and that he filed his disability retirement application within 1 year after his
mental competence was restored. ID at 3. The administrative judge found it
undisputed that the appellant filed his application for disability reti rement more
than 5 years after he resigned from the U.S. Postal Service. ID at 3-4. The
administrative judge further found that the appellant failed to establish that the
1-year filing period should be waived because he did not submit medical evidence
showing that he suffered from a condition that rendered him mentally
incompetent when he separated from service or within the statutory 1-year filing
period thereafter. ID at 9.
¶6 The appellant has filed a petition for review arguing that the evidence he
submitted proved that he was mentally incompetent when he separated from
service. Petition for Review (PFR) File, Tab 1 at 5. He argues that he was under
a court ordered 4-month confinement at the Waco Freeman Center on January 1,
2007, which prevented him from filing for benefits. Id. He reasserts his
argument that his receipt of SSA disability benefits in 2013, with a “guardian and
payee for all social security funds,” proves that he was mentally incompetent
during the relevant filing period. He also resubmits part of a January 28, 2016
letter prepared for the Office of Special Counsel by an occupational medical
consultant. Id. at 7. In the letter, which is part of the record on appeal, the
occupational medical consultant concludes that “[t]he medical documentation
does not support the mental incompetence claimed by the [appellant],” and
recommends that OPM deny his disability retirement application. IAF, Tab 7
at 6-8. We find that none of the appellant’s evidence or arguments submitted on
review are persuasive.
¶7 Under 5 U.S.C. § 8453, an application for disability retirement under FERS
must be filed with an employee’s employing agency before the employee
separates from service or with the former employing agency or OPM within
1 year after the employee’s separation. See Bruce v. Office of Personnel
Management, 119 M.S.P.R. 617, ¶ 7 (2013). The 1-year filing time limit may be
5
waived if the employee is mentally incompetent at the date of separation or
became mentally incompetent within 1 year thereafter and the application is filed
with OPM within 1 year from the date the employee is restored to competency or
is appointed a fiduciary, whichever is earlier. Id.¶8 It is undisputed that the appellant’s disability retirement application was
signed on November 14, 2013, and OPM received it on November 20, 2013, more
than 5 years after the 1-year filing period had expired on October 20, 2008. IAF,
Tab 5 at 4, 45; ID at 2. Thus, the issue in this case is whether the appellant
showed that he was mentally incompetent during the period from October 20,
2007, to October 20, 2008. The appellant has the burden of proving, by
preponderant evidence, that he was mentally incompetent during the relevant
filing period. King v. Office of Personnel Management, 112 M.S.P.R. 522, ¶ 7
(2009). Preponderant evidence is that degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
to find that a contested fact is more likely to be true than untrue. 5 C.F.R.
§ 1201.4(q) (2016). In determining whether an applicant was mentally
incompetent for the purposes of the time limit, the Board require s medical
evidence supporting subjective opinions of mental incompetence. Arizpe v. Office
of Personnel Management, 88 M.S.P.R. 463, ¶ 9 (2001). The definition of mental
incompetence “may be satisfied by [a person] having some minimal capacity to
manage his own affairs, and not needing to be committed”; the applicant need not
show that he was a “raving lunatic continuously.” French v. Office of Personnel
Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987).
¶9 The appellant’s argument on review that, on January 1, 2007, he was
involuntarily confined to the Waco Freeman Center for 4 months, does not show
that he was incapable of timely filing his disability retirement application prior to
his resignation on October 20, 2007, or during the 1-year period following his
separation and ending on October 20, 2008. PFR File, Tab 1 at 5. The appellant
does not identify the incident or diagnosis that resulted in his alleged
6
court-ordered treatment at the Freeman Center. 3 He also fails to identify the
condition(s) for which he was treated at the Freeman Center or the outcome of his
treatment, and we are unable to find this information in the record. We therefore
find that the appellant has failed to show that his 4-month court-ordered
confinement at the Freeman Center on January 1, 2007, proves that he was
mentally incompetent throughout the relevant period for filing his application.
¶10 On review, the appellant also resubmits the first page of a January 28, 2016
letter prepared by the occupational medical consultant, stating that the “detailed
psychological evaluation Dr. [J.G.] performed on 6/18/07” clearly indicated that
the appellant had the capacity to understand how to fill out forms to receive
benefits from social assistance organizations. Id. at 7. Dr. J.G. evaluated the
appellant just 4 months before he resigned in October 2007, while his application
for SSA disability was pending. ID at 6; IAF, Tab 5 at 11-19. The administrative
judge considered the June 2007 psychological evaluation by Dr. J.G., which
concluded that, while the appellant was incapable of handling his own funds, he
could understand the meaning of filing for benefits. ID at 7; IAF, Tab 5 at 11.
¶11 Although Dr. J.G. also reported that the appellant was diagnosed with a
particular medical condition, the administrative judge found that Dr. J.G.’s report
did not indicate that he had access to any of the appellant’s medical or
psychological reports. ID at 7; IAF, Tab 5 at 13, 19. The administrative judge
found that Dr. J.G. reported this diagnosis based solely on the appellant’s
statement of his history. The administrative judge also found that the appeal
record lacked documentation from the examination that resulted in this diagnosis
or showed what symptoms the appellant experienced to warrant this diagnosis.
ID at 7. The appellant does not dispute this finding on review.
3
Although unclear, the Freeman Center in Waco, Texas, apparently provided treatment
for drug and alcohol addictions and may have offered dual-diagnosis treatment
programs for individuals with drug or alcohol addictions and mental disorders. See
http://www.recovery.org/providers/freeman-center-457772354/ (last visited Dec. 9,
2016).
7
¶12 Dr. J.G. also rated the appellant’s overall psychological functioning
at 65 on the Global Assessment of Functioning (GAF) Scale , and the
administrative judge noted that, according to the Diagnostic and Statistical
Manual of Mental Disorders, people with GAF ratings between 61 and 70 are
considered to have some mild symptoms or some difficulty functioning, but
generally function pretty well. Id. The administrative judge found that the record
showed that the appellant generally was functioning well during the relevant
filing period. ID at 9. Specifically, the administrative judge noted that the
appellant already had applied for SSA disability benefits in April 2007, before his
October 2007 resignation. Id. The administrative judge also noted that, upon the
appellant’s resignation: he applied for a refund of his retirement deductions and
used that money to pay an attorney to represent him in pending legal matters; he
filed income tax forms for 2007; and he applied for unemployment benefits. Id.
The administrative judge further noted that the medical records documenting the
appellant’s interactions with medical personnel during the relevant period do not
indicate that he had problems understanding and participating in discussions of
his test results and treatment plans. Id. The administrative judge found this
evidence was inconsistent with the conclusion that the appellant was mentally
incompetent during the period from October 20, 2007, through October 20, 2008.
ID at 9. The appellant has failed to identify any new and material evidence on
review proving that he was mentally incompetent during the relevant time period.
¶13 On review, the appellant reasserts the argument he made below that he is
mentally incompetent because he is required to have a representative payee for
the SSA disability benefits he was awarded in 2013. PFR File, Tab 1 at 5. While
not dispositive, the Board must consider an award of SSA disability benefits in
determining an individual’s eligibility for disability retirement. See Szejner v.
Office of Personnel Management, 99 M.S.P.R. 275, ¶ 12 (2005). The
administrative judge properly considered the appellant’s award of SSA disability
benefits, together with the other evidence submitted on appeal in affirming
8
OPM’s reconsideration decision dismissing his application as untimely filed. ID
at 8-10. The appellant did not provide documentation from the SSA showing the
medical or psychological conditions for which his disability claim was approved
in 2013 or the date that his conditions were determined to be disabling. ID at 6;
see IAF, Tab 5 at 35-36. We therefore find that the 2013 SSA award, and the
concurrent appointment of a representative payee, do not prove that the appellant
was mentally incompetent when he resigned on October 20, 2007, or during t he
1-year period for filing his disability retirement application, ending on October
20, 2008.
¶14 For the first time on review, the appellant argues that his employing agency
forced him to resign because of his on-duty misconduct. 4 PFR File, Tab 1 at 4.
The appellant’s argument does not show that OPM erred in dismissing his
disability retirement application as untimely filed, which is the only issue before
the Board on review. IAF, Tab 8. If the appellant would like to file an
involuntary resignation appeal against his former employing agency, he would
need to file a separate appeal with the Board’s regional office. 5
4
The administrative judge considered the appellant’s testimony that he used poor
judgment and engaged in misconduct prior to resigning and that the nature of his
misconduct proved that he was mentally ill. ID at 5, 9. The administrative judge was
not persuaded by the appellant’s argument that his misconduct proved that he was
mentally incompetent. ID at 9; PFR File, Tab 1 at 4. The administrative judge found
that the appellant’s testimony showed that he understood the consequences of his
misconduct and that he decided to resign rather than to face the disciplinary action
proposed by the agency. ID at 9.
5
The Board’s appellate jurisdiction does not include the authority to review cases when
an employee has resigned voluntarily from his position. See Paone v. Department of
the Army, 10 M.S.P.R. 284, 286 (1982); see 5 U.S.C. § 7512; 5 C.F.R. § 1201.3.
However, an involuntary resignation is deemed to be tantamount to a discharge. Paone,
10 M.S.P.R. at 287. Although the voluntary nature of the resignation is presumed valid,
it is an issue of fact that may be rebutted by evidence establishing that the resignation
was coerced or was otherwise involuntary. Id. The burden of proof to establish that the
resignation was involuntary, and thus within the Board’s jurisdiction, is with the
appellant. Id.; 5 C.F.R. § 1201.56(a)(2). The appellant also has the burden of proving
that his appeal is timely filed. 5 C.F.R. § 1201.56(a)(2); see 5 C.F.R. § 1201.22(b).
9
¶15 Accordingly, because the appellant failed to establish a basis for waiving
the statutory time limit for filing his application for disability retirement, we deny
his petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U .S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court ’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
10
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.