Michael Tye v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. TYE, DOCKET NUMBER
Appellant, PH-844E-20-0204-I-1
v.
OFFICE OF PERSONNEL DATE: July 26, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael A. Tye , Feasterville Trevose, Pennsylvania, pro se.
Shawna Wheatley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
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)
dismissing his application for disability retirement as untimely filed and
determining that the appellant was not entitled to a waiver of the 1-year time limit
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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for filing the application. 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. Except as expressly MODIFIED to
provide an analysis for the administrative judge’s conclusion that the appellant
failed to establish a basis for waiving the untimeliness of his disability retirement
application, we AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed with the Department of the Treasury, Internal
Revenue Service (IRS), when he was separated from his employment on June 27,
2015. Initial Appeal File (IAF), Tab 7 at 22, Tab 8 at 46, 83. In November 2017,
OPM received the appellant’s application for a disability retirement annuity under
the Federal Employees’ Retirement System (FERS). IAF, Tab 7 at 22. In his
statement of disability, the appellant asserted that he suffered from chronic lower
back pain, sciatica, mild anemia, severe bipolar depression, and breathing issues,
which affected his memory, ability to concentrate, energy level, and ability to
keep up with proper hygiene. IAF, Tab 8 at 37. The appellant dated the
application with May 17, 2016, and May 27, 2017, with a notation that the May
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27 date was a second request. Id. at 38, 45. OPM deemed his application filed in
June 2017. IAF, Tab 7 at 5, 22, 28.
OPM issued an initial decision dismissing the appellant’s application for
disability retirement as untimely filed more than 1 year after his separation from
service. Id. at 22-25. 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 was mentally incompetent at
the time of his termination or became mentally incompetent during the following
year. Id. The appellant requested reconsideration of OPM’s initial decision. Id.
at 10-13. OPM issued a reconsideration decision sustaining its original decision
dismissing his application as untimely filed. Id. at 5-7. The appellant
subsequently filed an appeal of OPM’s reconsideration decision. IAF, Tab 1.
In a close-of-record order, the administrative judge apprised the appellant
of his burden of proving either that he timely filed a disability retirement
application or he was mentally incompetent during the relevant filing period, and
thus, entitled to a waiver of the filing deadline. IAF, Tab 12 at 2-4. The
administrative judge provided the parties with an opportunity to respond to the
order. Id. at 5. After neither party responded, she issued an initial decision
affirming OPM’s reconsideration decision. IAF, Tab 13, Initial Decision (ID)
at 1-2, 6-7. Because the appellant did not request a hearing, the decision was
based on the written record. ID at 1-2; IAF, Tab 1 at 1, Tab 2 at 1-2, Tab 10 at 1.
The administrative judge found the appellant failed to prove that he timely filed
his disability retirement application or he was entitled to a waiver of the filing
deadline based on mental incompetence. ID at 6-7. The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has not
filed a response to the appellant’s petition for review.
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DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to prove that he timely filed an application for disability
retirement.
On review, the appellant first argues that he truthfully represented the two
dates, in May 2016 and May 2017, on which he filed his disability retirement
application. PFR File, Tab 1 at 5. The administrative judge gave little weight
below to the appellant’s statements as to the date of filing, and we discern no
basis to do otherwise on review.
Under 5 U.S.C. § 8453, an application for disability retirement under FERS
must be filed with an employee’s employing agency before he separates from
service or with the former employing agency or OPM within 1 year after his
separation. See Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7
(2013). The date of filing the application is the date of receipt by personal
delivery, or the date it was sent if the application was faxed or mail. 5 C.F.R.
§ 844.201(a)(2). Absent a postmark, a mailed application is presumed to have
been sent 5 days before its receipt. 5 C.F.R. § 844.201(a)(2). As the
administrative judge observed, the appellant’s employing agency stamped the
application as received in June 2017, 2 years after his separation. ID at 2; IAF,
Tab 8 at 43, 83. The appellant did not state, and the record does not reflect, via
what method he sent the application. IAF, Tab 1 at 7, Tab 7 at 15. Nor is there a
postmark associated with, or facsimile mark on, the application. IAF, Tab 8
at 43, 83. Accordingly, we presume that, at the earliest, the application was
mailed 5 days prior to when it was received by the appellant’s former employing
agency, which also would have been in June 2017. Id.; 5 C.F.R. § 844.201(a)(2).
Ordinarily, when an appellant certifies to the truthfulness of his statements
and signs the appeal form, the statements would be accorded sufficient weight to
rebut the presumption. Foust v. Department of the Treasury, 80 M.S.P.R. 477,
¶ 6 (1998) (giving weight to statement in appeal form, which the appellant
certified to be true by signing, concerning the date she received a letter).
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However, factors can affect the weight to be accorded to such hearsay evidence,
including the consistency of declarants’ accounts with other information in the
case, internal consistency, and their consistency with each other, and whether
corroboration for statements can otherwise be found in the record. Borninkhof v.
Department of Justice, 5 M.S.P.R. 77, 87 (1981).
Here, the administrative judge accorded little weight to the appellant’s
statement on the appeal form because it contradicted an earlier statement he
submitted to OPM. In his initial appeal, the appellant claimed that he timely
submitted his application but did not keep a copy, so he prepared and submitted a
new claim 1 year later. IAF, Tab 1 at 7. In his prior statement to OPM, he
claimed that he resubmitted his prior application after retrieving it from storage.
IAF, Tab 7 at 15. Applying the relevant Borninkhof factors, we agree with the
administrative judge that the appellant’s certified statement on his initial appeal
and his statement to OPM are not sufficient to rebut the presumption of untimely
filing. His statements were inconsistent with each other. Further, in his petition
for review, he claims that he found his original application while packing his
belongings to go to storage, which is inconsistent with his statement to OPM that
he retrieved the application from storage. PFR File, Tab 1 at 5. It is also
inconsistent with his statement in his original appeal that he did not keep a copy
of his prior application. Id. Thus, the administrative judge correctly found that
the appellant’s statements regarding when he submitted his application were
entitled to little weight.
The appellant also argues that the administrative judge erred in determining
that he put both dates on the application on the same day. PFR File Tab 1 at 5;
ID at 6. He maintains that the form was signed and dated on two separate dates.
Id. We discern no basis to disturb this finding because the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service,
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74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 257, 359 (1987).
The appellant failed to prove that he is entitled to a waiver of the 1-year time
limit based on mental incompetence.
Because we have affirmed that the appellant’s retirement application was
untimely filed, the remaining issue in this case is whether the appellant showed
that he was mentally incompetent during the period from June 27, 2015, to
June 26, 2016. Without providing an analysis, the administrative judge affirmed
OPM’s determination that the appellant failed to establish his entitlement to a
waiver of the filing deadline based on mental incompetence. ID at 6. We agree
with the administrative judge but modify the initial decision to provide an
analysis justifying her conclusion.
The 1-year filing time limit for filing an application for disability
retirement may be waived if the employee was 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. 5 U.S.C.
§ 8453; Bruce, 119 M.S.P.R. 617, ¶ 7. 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).
The definition of mental incompetence “may be satisfied by one 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.” See French v. Office of Personnel Management, 810 F.2d 1118,
1120 (Fed. Cir. 1987) (interpreting the same language as it applies to applicants
for disability retirement annuities under the Civil Service Retirement System). In
determining whether an individual was mentally incompetent during the relevant
filing period, the Board requires medical evidence supporting subjective opinions
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of mental incompetence. Arizpe v. Office of Personnel Management, 88 M.S.P.R.
463, ¶ 9 (2001).
In its initial decision and a subsequent letter, OPM advised the appellant
that it could waive the 1-year time limit based on a showing of incompetence.
IAF, Tab 7 at 22-24, 28. The appellant submitted to OPM unsworn statements
from his sister, his girlfriend, and himself, along with notes from his psychiatrist
and clinical summaries of medical appointments with his physician. IAF, Tab 7
at 10-12, 15-18, 31-43, 47-48. The statements indicate that the appellant suffered
from severe depression and bipolar disorder. Id. at 10-12, 16-18. Notes from his
psychiatrist indicate that he was diagnosed with bipolar depression disorder and
major depressive disorder and was unable to work. Id. at 31-33. The clinical
summaries chronicle his treatment for various medical issues including pain in his
hand, hyperlipidemia, high blood pressure, and dysmetabolic syndrome. Id.
at 34-43, 47-48. While the clinical summaries list depressive disorder as an
active problem, there is no additional information or an explanation of the
diagnosis. Id. at 39, 43, 48.
While we find that the appellant established that he was affected by bipolar
disorder and major depressive disorder, the medical reports fail to establish
mental incapacity such as is necessary to waive the filing time limit. In Pilcher v.
Office of Personnel Management, 96 M.S.P.R. 317, ¶ 24 (2004), the Board held
that the physician’s statement that the appellant was mentally incompetent was
entitled to little or no weight because it provided no explanation for its
conclusion and was not accompanied by any supporting documentation.
Similarly, here the psychiatrist’s notes and physician’s clinical summaries
indicate his diagnosis is bipolar depression disorder and major depressive
disorder but fail to include a medical report or examination to substantiate the
diagnosis.
In their statements, the appellant, his sister, and his girlfriend asserted that
his depression and bipolar disorder caused him to forget things, affected his
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ability to focus, and made him withdraw from social interactions and disregard
personal hygiene. IAF, Tab 7 at 10-12, 16-19; Tab 8 at 37. This evidence,
without a supporting medical report, is insufficient to determine that the appellant
was mentally incompetent during the relevant period. See Crane v. Office of
Personnel Management, 55 M.S.P.R 16, 18-19 (1992) (finding that it is error for
an administrative judge to rely upon the testimonies of the appellant and her
husband to find mental incapacity, absent a supporting medical report). Further,
medical evidence that does not provide a time at which mental deterioration
commenced or the degree to which the condition affected the appellant’s
competence is insufficient to establish incompetency. Savage v. Department of
the Air Force, 30 M.S.P.R. 665, 668 (1986). Here, the psychiatrist’s notes
indicate the appellant began treatment for depression around 2014 or 2015 and
was unable to work as of May 2018 but offer no details as to the appellant’s
competency or lack thereof. IAF Tab 7 at 30-33. Therefore, we agree with the
administrative judge that the appellant has failed to show that he was mentally
incompetent during the filing period.
On review, the appellant did not provide any evidence of his mental
incompetence during the relevant period. He only asserted that he failed to
respond to the administrative judge’s close-of-record conference because his dog
died and his depression medication barely kept him functional. PFR File, Tab 1
at 4. Because it appears these events occurred after the 1-year period for filing
his disability retirement application, these facts are not relevant here. Thus, we
find that the appellant’s assertion does not provide a reason to disturb the initial
decision.
Lastly, the appellant reasserts on review that he has a pending union
grievance challenging, as relevant here, his termination date. PFR File, Tab 1
at 5; IAF, Tab 1 at 7. He claims that the grievance is on hold, pending a
determination of his claim for disability with the Social Security Administration
(SSA). PFR File, Tab 1 at 5; IAF, Tab 1 at 7. He contends that the 1-year time
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limit should “be a little more lenient” in consideration of this situation. Under
5 U.S.C. § 1204(h), the Board is statutorily precluded from issuing advisory
opinions. The appellant’s request asks the Board to consider speculative facts
that are not in evidence and circumstances that may not occur to determine that
his retirement application was timely filed. The Board may not, and will not,
engage in conjecture as to how his grievance and SSA claim will be resolved.
See McLaughlin v. Office of Personnel Management, 62 M.S.P.R. 536, 554-55
(1994) (declining to consider an appellant’s hypothetical scenarios that would
require the Board to issue an advisory opinion, which is specifically forbidden by
statute), aff’d per curiam, 47 F.3d 1181 (Fed. Cir. 1995) (Table). The record
evidence reflects that his termination is June 27, 2015.
Since filing his petition for review in August 2020, the appellant has not
sought to submit new evidence of any change in his termination date. As such,
we find that the appellant’s contention is not sufficient to find that OPM erred in
dismissing his disability retirement application as untimely filed. Thus, the
appellant failed to establish a basis for waiving the statutory time limit for filing
his application for disability retirement, and we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
2
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.
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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
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
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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
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
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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
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. 3 The court of appeals must receive your petition for
3
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.
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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
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.
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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.