Andrew Fullman v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW FULLMAN, DOCKET NUMBER
Appellant, PH-844E-14-0864-I-2
v.
OFFICE OF PERSONNEL DATE: August 22, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew Fullman, Philadelphia, Pennsylvania, 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 petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing his application for disability retirement as untimely filed. Generally,
we grant petitions such as this one only when: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,
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 Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous 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. See
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).
BACKGROUND
¶2 The appellant was employed by the U.S. Postal Service from 1987 to 1992,
and again from May 3 to May 29, 2003, when he was terminated during his
probationary period. Initial Appeal File (IAF), Tab 6 at 197-203. 2 On or about
March 7, 2011, he filed an application for disability retirement under the Federal
Employees’ Retirement System (FERS), asserting that he was unable to perform
the duties of his position due to musculoskeletal injuries, including central L4-5
disc bulge with annular fissure and mild bilateral foraminal stenosis. Id. at 92-97.
By letter dated April 29, 2014, OPM informed the appellant that his application
was dismissed as untimely filed. Id. at 88-89. The letter explained that he
did not file his application within 1 year of his separation, as required by statute,
and that the deadline could not be waived because there was no evidence that he
2
References to the record at “IAF” will be to the initial appeal file (I-1) as opposed to
the Refiled Appeal File (RAF).
3
was mentally incompetent at the time of his termination or became mentally
incompetent during the following year. Id. at 88-89.
¶3 On May 19, 2014, the appellant requested reconsideration and indicated that
he intended to submit additional evidence within 30 days. Id. at 7-8. On May 31,
2014, he submitted a copy of the “mental health file,” which his attorney had kept
in connection with his social security claim. Id. at 9-87. In the attached letter, 3
he asserted that he had been diagnosed with anxiety, panic attacks, major
depressive disorder, and posttraumatic stress disorder, and had been receiving
treatment for these conditions since 2003. Id. at 9. In subsequent
correspondence, dated June 26, 2014, he also provided sworn statements from his
brother and a long-time friend, J.W., both of whom averred that they had assisted
the appellant with his personal affairs during the relevant period because he was
physically and mentally incompetent. IAF, Tab 14, Exhibit C.
¶4 On July 10, 2014, OPM issued a final decision reaffirming the dismissal of
the appellant’s application. IAF, Tab 6 at 4-6. In its decision, OPM noted that
the appellant had filed applications for other Federal benefits during the 1-year
period following his termination and had done so without the aid of a
court-appointed guardian or custodian or any other apparent assistance. Id. OPM
further stated, albeit incorrectly, that the appellant had not submitted additional
evidence in support of his claim that he was mentally incompetent during the
1-year period. Id. On August 20, 2014, the appellant filed an appeal with the
Board. IAF, Tab 1.
¶5 During the proceedings below, the appellant requested and received two
30-day suspensions of case processing to provide him with additional time in
which to obtain supporting medical documentation and find a representative.
IAF, Tabs 8-11. Subsequently, in a letter dated February 13, 2015, the appellant
asked the administrative judge to provide clarification as to what additional
3
The letter is incorrectly dated May 31, 2013.
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medical documentation would be needed to support his case. IAF, Tab 16.
During a March 5, 2015 conference call, the administrative judge addressed the
appellant’s February 13, 2015 letter and found that OPM’s decisions were
sufficient to place the appellant on notice of the issue under appeal, i.e., whether
he was mentally incompetent when he was separated from the Postal Service or
became incompetent within 1 year after that date, and if so, whether he filed his
disability retirement application within 1 year of the date he regained
competence. IAF, Tab 20; see 5 U.S.C. § 8453. However, the administrative
judge again explained the issue under appeal and agreed to provide the appellant
“one final opportunity” to obtain additional evidence from his physicians. IAF,
Tab 20. The administrative judge explained in detail what information should be
included in that evidence. Id. The administrative judge agreed to dismiss the
appeal without prejudice, to be automatically refiled in 36 days, and the appeal
was dismissed and refiled accordingly. Id.; see IAF, Tab 21; Refiled Appeal File
(RAF), Tab 1.
¶6 Following a hearing, the administrative judge issued an initial decision,
dated August 19, 2015, affirming OPM’s final decision. RAF, Tab 10, Initial
Decision (ID). Based on his de novo review of the record, he found that the
medical evidence showed that the appellant had suffered from several diagnosed
mental conditions over an extended period of time, but that there was no medical
evidence showing that he was mentally incompetent during the relevant period
from May 29, 2003, to May 28, 2004. Id. In addition to the medical evidence,
the administrative judge considered the testimony of the appellant, the testimony
and sworn statement of J.W., and the sworn statement of the appellant’s brother.
Id. However, he found that their statements were either not credible or not
sufficiently detailed to establish that the appellant only had minimal capacity to
manage his affairs during the 1-year period following his separation. Id.¶7 Following the issuance of the initial decision, the appellant requested a
20-day extension of the deadline for filing his petition for review, indicating that
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he needed additional time to request a subpoena for medical health records.
Petition for Review (PFR) File, Tab 1. The Clerk of the Board granted his
request. PFR File, Tab 2. On October 13, 2015, the appellant timely filed a
petition for review and an amendment thereto and requested an additional 30-day
extension in which to submit supporting medical evidence. PFR File, Tabs 5-6.
In the October 22, 2015 acknowledgement letter, the Clerk of the Board granted
the appellant’s request to file a supplement to his petition for review and
indicated that the supplemental pleading must be filed on or before November 12,
2015. PFR File, Tab 7. On November 13, 2015, the day after the deadline, the
appellant filed a “Supplemental Petition for Review,” and on November 17, 2015,
he filed a “Request to File Supplemental Petition for Review out of Time.” PFR
File, Tabs 8-9. On December 4, 2015, the agency filed a timely response to the
appellant’s petition for review. PFR File, Tab 11.
¶8 Subsequently, on December 7, 2015, the appellant submitted a request for
the Board to place his case on hold so that he could obtain a narrative report from
his psychiatrist, with whom he had scheduled an appointment on December 16,
2015. PFR File, Tab 12. On December 9, 2015, the appellant filed a motion to
submit a pleading after the closing of the record, again citing delays in obtaining
the narrative medical report. PFR File, Tab 13. On December 29, 2015, the
appellant filed a reply to the agency’s response to his petition for review. PFR
File, Tab 15. On March 18, 2016, the appellant filed a second motion to submit
additional medical evidence after the record closed, which also appears to contain
the new evidence that he referenced in his motion. PFR File, Tab 16.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 On review, the appellant first alleges bias and discrimination on the part of
the administrative judge. PFR File, Tab 5 at 1. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators. Oliver v.
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Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). We find the
appellant’s allegations of bias do not meet this standard. He contends that the
administrative judge took advantage of his psychological condition by issuing
confusing and misleading instructions and that he stated over the telephone that
he did not want the case remanded because of the appellant’s mental illness. PFR
File, Tab 5 at 1. However, we find no indication in the record that the
administrative judge gave the appellant confusing or misleading instructions,
deliberately or otherwise. Furthermore, the appellant has not shown that the
remarks he attributed to the administrative judge were anything other than the
administrative judge’s honest appraisal of his case. See Galloway v. Department
of Agriculture, 110 M.S.P.R. 311, ¶ 13 (2008).
¶10 The appellant also asserts that the administrative judge improperly denied
his request for subpoenas and then incorrectly stated that he had withdrawn his
request. PFR File, Tab 5. However, the appellant stated at the hearing that he
had no objection to the summary of the June 30, 2015 prehearing conference, in
which the administrative judge stated that the appellant had withdrawn his request
for subpoenas and was responsible for ensuring that his witnesses were available
to testify. RAF, Tab 8; Hearing CD. The appellant was specifically advised that
any objection to the summary must be made prior to the swearing in of the first
witness at the hearing or the objection would be deemed waived. RAF, Tab 8.
The appellant thus has waived any objection concerning his request
for subpoenas.
¶11 The appellant further contends that the administrative judge failed to
properly consider and weigh medical evidence establishing that his mental
7
conditions began in 2001. PFR File, Tab 5 at 1. Specifically, the appellant points
to an April 14, 2015 letter from a practitioner at a current place of treatment,
which summarizes a Level of Care Assessment completed in the fall of 2011.
PFR File, Tab 6, Exhibit A. The original assessment, which was prepared by the
same practitioner, is also in the record. IAF, Tab 6 at 64-73. The assessment
indicates that the appellant was suffering from psychological symptoms including
depression, anxiety, disorganized thought processes, and panic attacks. Id. at 72.
The assessment further states that these symptoms “were first experienced about
10 years ago,” but had fluctuated in intensity over the years, and increased in
severity in the preceding 2 months. Id. The assessment further notes that the
appellant had first sought treatment in 2004. Id.¶12 We find that, contrary to the appellant’s assertions, the administrative judge
gave due consideration to the evidence in question. In the initial decision, the
administrative judge acknowledged that, in the original assessment, the appellant
had reported experiencing symptoms as early as 2001. ID at 10. He further
found that, even if the appellant did not begin treatment until late 2004, it was
more likely than not that the appellant was already experiencing some of the
symptoms that caused him to seek treatment during the 1-year following his
separation from the Postal Service. Id. at 9-10 (citing Bruce v. Office of
Personnel Management, 119 M.S.P.R. 617, ¶ 12 (2013)).
¶13 However, we find that the administrative judge correctly found that the
record contains no medical evidence to establish that the appellant’s
psychological symptoms, which admittedly waxed and waned over the years,
rendered him mentally incompetent during the 1-year period following his
separation from the Postal Service. The appellant has provided evidence on
review showing that he was prescribed Xanax on March 20, 2004, before the end
of that 1-year period. PFR File, Tab 5, Exhibit E. However, the fact that the
appellant was prescribed Xanax does not establish that he was mentally
incompetent, and we note that he has taken Xanax in the course of these
8
proceedings. IAF, Tab 14, Response to Interrogatory #5. We also are not
persuaded by his contention that we should find the medical evidence sufficient to
establish his mental incompetence during the filing period because an OPM
specialist allegedly called him to ask whether he was receiving social security
disability benefits. PFR File, Tab 5 at 1.
¶14 The appellant also objects that OPM failed to consider the notarized
statements by his brother and J.W., which he had submitted to OPM prior to the
issuance of its reconsideration decision. He argues that the administrative judge
should have therefore granted his request to subpoena the OPM specialist to
whom he mailed the statements. PFR File, Tab 5 at 1-2. However, as discussed
above, the appellant has waived any objections concerning his withdrawn
subpoena requests. In any event, it is irrelevant whether OPM considered those
documents, because the administrative judge did consider them, and the Board’s
review of an OPM decision is de novo. See Licausi v. Office of Personnel
Management, 350 F.3d 1359, 1363-65 (Fed. Cir. 2003).
¶15 The appellant further asserts that his former employer did not inform him of
his right to file a disability retirement claim until December 15, 2010. PFR File,
Tab 5 at 2. Where an employee is removed based on reasons apparently caused
by a medical condition, FERS regulations require that the employing agency
inform the employee of his possible eligibility for disability retirement and the
time limit for filing an application. 5 C.F.R. § 844.202(b)(1). However, the
record reflects that the appellant was terminated for failing to disclose on his
application that he previously had been removed for alleged misconduct. IAF,
Tab 6 at 92. Moreover, even if the agency were required by 5 C.F.R.
§ 844.202(b)(1) to inform the appellant of his potential disability retirement
option, its failure to do so would not provide a basis to waive the statutory 1-year
filing deadline under 5 U.S.C. § 8453. King v. Office of Personnel Management,
112 M.S.P.R. 522, ¶ 14 (2009).
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¶16 The appellant also argues that that administrative judge failed to consider
evidence that a Federal lawsuit he had filed during the 1-year period following his
termination was “put on hold in the suspense file for years due to [his]
psychological issues and serious side effects from his psychotropic medications.”
PFR File, Tab 5 at 2. In support of his claim, the appellant supplies a copy of an
order from the U.S. District Court for the Eastern District of Pennsylvania,
indicating that the court was placing his civil action against the Postal Service in
the Civil Suspense file because he was undergoing medical treatment. Id.,Exhibit B. However, the court order is dated August 24, 2005, well over a year
after the 1-year period expired, and it does not specify the nature of the
appellant’s medical treatment. Id. Hence, to the extent the administrative judge
may have failed to consider that evidence, we find that the omission was of no
consequence. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).
¶17 Finally, we find no merit to the appellant’s suggestion that the
administrative judge improperly closed the record while he was still awaiting
additional medical evidence. The decisions by OPM were sufficient to place the
appellant on notice of the issue on appeal, and the administrative judge provided
the appellant multiple extensions of time in which to acquire supporting medical
evidence, including two 30-day suspensions and a dismissal without prejudice to
refiling, which delayed processing of the case by an additional 36 days. IAF,
Tabs 8-11, 20-21. To the extent the appellant may have been in doubt as to the
precise kind of medical evidence needed to support his claim, the administrative
judge explained in clear detail what information was required in his written
summary of the March 5, 2015 conference call. IAF, Tab 20. The administrative
judge clearly informed the appellant that this would be his final opportunity to
provide supporting medical evidence, id., and the written record remained open
until June 25, 2015, RAF, Tab 5. While we acknowledge that obtaining
decade-old medical documentation may be time-consuming, we nonetheless find
10
that the appellant was provided ample opportunity to obtain additional supporting
evidence before the record closed.
¶18 Regarding the appellant’s additional filings, we note that he filed his
supplement to his petition for review 1 day after the extended deadline of
November 12, 2015, which was clearly set forth in the acknowledgment letter.
PFR File, Tabs 7, 9. Additionally, he timely filed his reply to the agency’s
response to the petition for review on December 29, 2015, based on the agency’s
service of its response on him on December 16, 2015. PFR File, Tab 15; see
5 C.F.R. § 1201.23 (“Unless a different deadline is specified by the Board or its
designee, 5 days are added to a party’s deadline for responding to a document
served on the party by mail.”). Despite the untimeliness of the appellant’s
supplement to his petition for review, we have nonetheless examined it, as well as
his reply to the agency’s response, and we find that neither pleading meets the
criteria for review under 5 C.F.R. § 1201.115.
¶19 As to the appellant’s requests for leave to file additional pleadings, the
Board’s regulations do not provide for pleadings other than a petition for review,
a cross petition for review, a response to the petition for review or cross petition
for review, and a reply to a response. 5 C.F.R. § 1201.114(a)(5). For the Board
to consider a pleading other than those set forth above, the party must describe
the nature and need for the pleading. Id. In support of his initial request to file
an additional pleading, the appellant asserts that he is still awaiting medical
information from his psychiatrist. PFR File, Tab 12. However, as discussed
above, the appellant was provided ample opportunity to obtain medical evidence
before the close of the record below, and he has since been granted two filing
extensions on review. We therefore deny his request to file an additional
pleading on this basis. For the same reasons, we also deny the appellant’s request
to put the case on hold. With his subsequent request to file an additional
pleading, the appellant included with his motion “Progress Notes” from his
medical provider dated January 9, 2009, that include prescription medications.
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PFR File, Tab 16. Even assuming that this medical documentation previously
was not available despite the appellant’s due diligence, it is not material as it does
not provide evidence of his mental state during the requisite 1-year period
following his separation from the Postal Service.
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.
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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
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.