Stussy v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIETER STUSSY,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2014-3149
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-844E-13-0168-I-1.
______________________
Decided: October 31, 2016
______________________
MICHAEL J. SCHIFF, Michael J. Schiff, A Professional
Law Corp., Woodland Hills, CA, for petitioner.
PHYLLIS JO BAUNACH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., FRANKLIN
E. WHITE, JR.
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
2 STUSSY v. OPM
PER CURIAM.
Dieter Stussy petitions for review of a final order of
the Merit Systems Protection Board (“Board”). The Board
affirmed an Office of Personnel Management (“OPM”)
decision denying disability retirement because the appli-
cation was not timely filed. We affirm.
BACKGROUND
Stussy was an employee of the Internal Revenue Ser-
vice (“agency”) from July 3, 1988, until he was removed on
October 15, 1993. Stussy grieved his removal, and the
grievance was resolved by a settlement agreement in
1994. By the terms of the settlement agreement, Stussy’s
1993 removal was changed to a resignation effective
February 15, 1994.
In February 2012, 18 years later, Stussy filed an ap-
plication for immediate disability retirement under the
Federal Employees Retirement System (“FERS”). On his
application, Stussy listed his date of final separation as
October 15, 1993. In support of his application, Stussy
submitted three assessment reports from mental health
professionals prepared in 1993 and 1994, each stating
that Stussy had experienced difficulties involving social
interaction. OPM denied Stussy’s application because it
did not meet the statutory time limit requiring that an
application be filed within one year of separation from
service. 5 U.S.C. § 8453. OPM also determined that
Stussy did not qualify for a waiver of the deadline because
he did not establish that he was mentally incompetent at
the time of his separation or that he became mentally
incompetent within one year thereafter. Id.
Stussy appealed to the Board. The administrative
judge (“AJ”) agreed with OPM that Stussy’s application
for disability retirement was untimely and that the record
did not support a finding that Stussy was mentally in-
competent at any relevant time. The Board denied
STUSSY v. OPM 3
Stussy’s petition for review of the AJ’s decision. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court will reverse a Board decision only if the
Board’s action, findings, or conclusions were “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
An application for retirement disability benefits is
timely if it is filed “before the employee or Member is
separated from the service or within 1 year thereafter.” 5
U.S.C. § 8453. An exception to this time limit applies to
an employee “who, at the date of separation from service
or within 1 year thereafter, is mentally incompetent if the
application is filed with the Office within 1 year from the
date of restoration of the employee or Member to compe-
tency or the appointment of a fiduciary, whichever is
earlier.” Id.
Stussy first argues that his application was timely be-
cause he should be retroactively reinstated to his position
at the agency due to the agency’s alleged breach of the
1994 settlement agreement, because the agreement was
invalid, or because the agency rescinded the agreement.
The crux of his argument is that, if he is reinstated and
determined to be a current employee of the agency, then
his application was timely filed. Stussy presents a litany
of reasons why the settlement agreement should be
disregarded. For example, Stussy asserts that despite the
agency’s agreement to remove all documentation regard-
ing Stussy’s 1993 removal from his employment records,
the agency later denied his application for enrollment to
practice before the agency, stating that he was not quali-
fied because he had been removed for violating the agen-
cy’s rules of conduct. Stussy separately argues that the
4 STUSSY v. OPM
settlement agreement is invalid because the allegedly
hostile work environment and alleged defects of the
arbitration proceedings coerced him into signing the
agreement. 1
We see no error in the Board’s refusal to address the
effectiveness of the settlement agreement. We need not
determine whether there does exist a forum in which
Stussy could seek a remedy for the alleged agency breach
and rescission of the settlement agreement. We simply
hold that the effectiveness of the settlement agreement is
beyond the scope of this proceeding. This is not a case
like Conant v. Office of Personnel Management, 255 F.3d
1371 (Fed. Cir. 2001), where the agency’s alleged breach
of the settlement agreement related to the disability
retirement application itself. See id. at 1377. Under the
circumstances here, Stussy’s arguments amount to an
impermissible collateral attack on the settlement agree-
ment. The Board did not abuse its discretion by declining
to address them. See Johnson v. U.S. Postal Serv., 108
M.S.P.R. 502, 506 n.5 (M.S.P.B. Apr. 7, 2008) (“If the
appellant believes that the agency’s decision to remove
him is inconsistent with the settlement agreement, or
that he should not be bound by the agreement, he should
bring a direct proceeding to invalidate or enforce the
agreement in the proper forum . . . .”).
Second, Stussy argues that the late filing of his disa-
bility retirement application should have been excused
because he was mentally incompetent between the time of
his separation and June 2011. “This court’s standard for
mental incompetence is an inability to handle one’s per-
sonal affairs because of either physical or mental disease
1 Stussy also asserts, without explanation, that the
Board erred by denying his discovery requests related to
his coercion argument.
STUSSY v. OPM 5
or injury.” Rapp v. Office of Pers. Mgmt., 483 F.3d 1339,
1341 (Fed. Cir. 2007).
The Board reviewed the medical evidence of record,
including the three mental health assessment reports
prepared in 1993 and 1994. The Board found that “[e]ach
of [the reports] concluded that [Stussy] had psychological
problems and recommended treatment to ameliorate
those problems, but none of them said anything that
would support a conclusion that the appellant’s psycholog-
ical problems rendered him unable to handle his personal
affairs.” J.A. 5–6. Substantial evidence supports the
Board’s finding that Stussy was not incompetent.
Stussy asserts that in July 2011, he applied for and
was later granted a Social Security Administration
(“SSA”) disability claim which indicated that he had been
disabled as of February 8, 1993. As we noted in Rapp,
“mental disability and mental incompetence are not the
same thing.” 483 F.3d at 1341. The Board did not err in
finding that Stussy had not shown that he was mentally
incompetent notwithstanding his SSA award.
Third, Stussy argues that he is entitled to a presump-
tion of disability because the disability was the reason for
his separation. See Bruner v. Office of Pers. Mgmt., 996
F.2d 290, 294 (Fed. Cir. 1993). However, the AJ found
that Stussy was not separated because of a disability, and
substantial evidence supports that determination.
Finally, Stussy argues that the agency failed to in-
form him that he may have been eligible to file a disabil-
ity claim when it removed him as required by 5 C.F.R.
§ 844.202(b)(1). Although the Board did not address this
argument, on its face it has no merit. That provision does
not apply here because Stussy voluntarily resigned pur-
suant to the settlement agreement. See Elendu v. Office
of Pers. Mgmt., 108 M.S.P.R. 1, 3 n.1 (M.S.P.B. Jan. 28,
2008) (“[T]he appellant voluntarily resigned from federal
service . . . ; therefore, . . . the [agency] was under no
6 STUSSY v. OPM
obligation to inform the appellant of his retirement eligi-
bility and of the time limit for filing an application.”).
We have considered Stussy’s remaining arguments
and conclude that they are without merit.
AFFIRMED
COSTS
No costs.