Anthony Bassett v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY BASSETT, DOCKET NUMBER
Appellant, AT-844E-21-0246-I-1
v.
OFFICE OF PERSONNEL DATE: March 6, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carolyn A. Dragseth , Esquire, Baton Rouge, Louisiana, for the appellant.
Shawna Wheatley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM),
finding that the appellant’s application for disability retirement benefits under the
Federal Employees’ Retirement System (FERS) was untimely filed. On petition
for review, the appellant argues that he has medical evidence that was unavailable
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
before the close of the record below and which demonstrates that he was mentally
incompetent during the pertinent 1-year period following his January 4, 2019
resignation from Federal service. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains 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. 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).
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 OPM within 1 year after the employee’s separation.
Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7 (2013). The
1-year filing time limit may be 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. 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). In determining whether
an applicant was mentally incompetent for the purposes of the time limit, the
Board requires medical evidence supporting subjective opinions of mental
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incompetence. Bruce, 119 M.S.P.R. 617, ¶ 7. 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). 2
Here, the record reflects that the appellant resigned from Federal service on
January 4, 2019, and that OPM received his application for disability retirement
benefits under FERS on June 15, 2020, well outside the 1-year filing period.
Bassett v. Office of Personnel Management, MSPB Docket No. AT-844E-21-
0246-I-1, Initial Appeal File (IAF), Tab 9 at 33-40, 44. Thus, the issue in this
case is whether the appellant showed that he was mentally incompetent during the
period from January 4, 2019, to January 4, 2020. The administrative judge found
that the appellant failed to make a nonfrivolous allegation that he was mentally
incompetent during the relevant period. IAF, Tab 14, Initial Decision (ID) at 5.
The medical evidence the appellant presents on review is not new. Petition
for Review (PFR) File, Tab 1 at 7. Inasmuch as it concerns the relevant period
described above, i.e., January 4, 2019, to January 4, 2020, we note that all of that
period was well before the close of the record below. Moreover, the letter from
the appellant’s primary care provider (PCP) implies that it is at least in part based
on the appellant’s prior medical records, which would also be from before the
close of the record below. Id. To constitute new and material evidence, the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed . Grassell v.
Department of Transportation, 40 M.S.P.R. 554, 564 (1989). Nevertheless, even
if we accept the appellant’s stated excuse for failing to present this evidence
2
Although French concerns an individual covered under the Civil Service Retirement
System, not FERS like the appellant in this matter, the holding regarding mental
capacity in French applies here because the language of the two statutes is similar.
Compare 5 U.S.C. § 8337(b), with 5 U.S.C. § 8453; see Bruce, 119 M.S.P.R. 617, ¶ 7
(applying French in a FERS case).
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below, that the doctor’s letter was delayed by consequences related to COVID-19,
PFR File, Tab 1 at 4, the purportedly new medical evidence is not persuasive in
light of the administrative judge’s findings and the record below.
Specifically, although the appellant’s PCP opined that the appellant was
unable to conduct legal affairs during the relevant period and until August 2020
due to his major depressive disorder, PFR File, Tab 1 at 7, the administrative
judge found, and the evidence indicates, that the appellant was able to participate
in a prior Board appeal against his former employing agency during the relevant
period, ID at 5; see Bassett v. Department of Defense, MSPB Docket No. DC-
0752-20-0125-I-1, Initial Appeal File (0125 IAF). The administrative judge
found that the appellant had been able to manage legal matters pro se during the
relevant period in a sophisticated manner, filing coherent responses to the
administrative judge’s jurisdictional order in his prior appeal. 3 ID at 5; 0125 IAF,
Tabs 4, 8. The appellant filed those pleadings in his prior Board appeal on
November 13 and 20, 2019, at nearly the end of the 1-year period following his
January 4, 2019 resignation, during which he now claims mental incompetence.
0125 IAF, Tabs 4, 8; PFR File, Tab 1 at 7.
In his response below, the appellant cited the possibility of obtaining relief
in his Board appeal and EEO action as a reason for delaying his application for
disability retirement benefits. IAF, Tab 12 at 8. The implication inherent in the
possibility of obtaining the relief he sought suggests that he was ready to resume
his position if that litigation were successful. Such a litigation position is
inconsistent with his present assertions of mental incompetence.
Moreover, the medical evidence below, as the administrative judge noted in
the initial decision, described the appellant’s mental health symptoms as mild
during the pertinent time, and the administrative judge found that such mild
mental health symptoms did not rise to the level of a finding that the appellant
3
Documents filed concerning the appellant’s EEO case indicate that he was represented
in that action. IAF, Tab 12 at 9-11.
5
was mentally incompetent. ID at 4-5; IAF, Tab 12 at 17. Although the medical
evidence the appellant submits on review regarding his scores on two tests
indicates that he was experiencing severe symptoms of depression and anxiety,
the PCP conducted these tests on February 7, 2020, which is outside the relevant
year following the appellant’s separation described above. PFR File, Tab 1 at 7.
Thus, it does not contradict the medical evidence below, which opined that the
appellant’s mental health symptoms, as of March 2019, which was during the
pertinent time period, were mild. IAF, Tab 12 at 17.
Accordingly, the appellant fails to demonstrate that the administrative
judge erred, and we affirm the initial decision which affirmed OPM’s
reconsideration decision finding that the appellant’s application for disability
retirement benefits was untimely filed.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
7
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.