Patricia A. Thieken v. Office of Personnel Management

11 F.3d 1074

NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Patricia A. THIEKEN, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 93-3201.

United States Court of Appeals, Federal Circuit.

Nov. 12, 1993.

Before ARCHER, MICHEL and SCHALL, Circuit Judges.

DECISION

PER CURIAM.

1

Patricia A. Thieken petitions for review of a January 4, 1993 decision of the Merit Systems Protection Board (board), Docket No. CH-831E-92-0447-I-1, which reversed an August 28, 1992 initial decision of the administrative judge (AJ). We affirm.

DISCUSSION

2

Thieken resigned from her position with the Department of the Air Force on May 3, 1985. On January 21, 1992, Thieken filed an application for disability retirement. The Office of Personnel Management (OPM) denied Thieken's application as untimely filed because it was filed more than one year after her separation. 5 U.S.C. Sec. 8337(b). Thieken appealed to the board on the grounds that she was mentally incompetent at the time of her separation and for several years thereafter and thus the statutory time limit should be waived. In an initial decision, the AJ agreed with Thieken and reversed OPM's decision. In its careful and reasoned decision reversing the AJ's initial decision, the board reviewed the record and found that Thieken failed to present any medical evidence to substantiate her claim of mental incompetency although the physician's letters detailed physical illnesses. The board therefore held that Thieken failed to meet her burden of proving the filing deadline should have been waived because of mental incompetency.

3

We cannot say, under our narrow standard of review, that the board abused its discretion or that its decision is unsupported by substantial evidence or is otherwise not in accordance with law. See 5 U.S.C. Sec. 7703(c). Therefore, we affirm on the basis of the reasoning in the board's opinion in this case.