McLaughlin v. Office of Personnel Mgmt.

Decision Date06 January 2004
Docket NumberNo. 03-3049.,03-3049.
Citation353 F.3d 1363
PartiesKatherine McLAUGHLIN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

John W. Hart, of Virginia Beach, Virginia, argued for petitioner.

David R. Feniger, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were David M. Cohen, Director; Donald E. Kinner, Assistant Director; and E. Michael Chiaparas, Trial Attorney.

Before MAYER, Chief Judge, CLEVENGER and GAJARSA, Circuit Judges.

CLEVENGER, Circuit Judge.

Katherine McLaughlin ("McLaughlin") seeks review of a final decision of the Merit Systems Protection Board ("Board") denying her application for disability retirement as untimely because it was filed after the one-year statutory filing deadline. McLaughlin v. Office of Pers. Mgmt., No. DC844E020184-I-1, 2002 WL 31188838 (M.S.P.B. Sept.19, 2002). This case presents the question of what standard of review we apply to a Board determination that a separated employee is not entitled to a waiver of the one-year statutory filing deadline because she was not mentally incompetent during the year following separation. See 5 U.S.C. § 8453 (2000). Because the determination that an applicant is not entitled to a waiver for mental incompetence does not go to the merits of the factual determination of disability, we review for substantial evidence. In this case, substantial evidence supports the Board's conclusion that McLaughlin was not mentally incompetent during the statutory filing period, so we affirm the Board's decision that she is not entitled to a waiver of the deadline.

I

By statute, an application for disability retirement under the Federal Employees Retirement System1 (FERS) may be considered on its merits if the application is filed with the Office of Personnel Management (OPM) within one year of separation from service. Deerinwater v. Office of Pers. Mgmt., 78 F.3d 570, 573 (Fed.Cir.1996). The time limitation on filing the application may be waived where the applicant was mentally incompetent during a statutorily defined time. The relevant statutory section reads:

A claim may be allowed under this subchapter only if application is filed with the Office before the employee or Member is separated from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee or Member 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 competency or the appointment of a fiduciary, whichever is earlier.

5 U.S.C. § 8453 (2000).

As the statute clearly states, a "claim may be allowed ... only if the application is filed ... before ... separat[ion] ... or within 1 year thereafter." Id. (emphasis added). The only exception is that the "time limitation may be waived" if the employee is "mentally incompetent" during the filing period. For this reason, an application that is untimely and not entitled to a waiver for mental incompetence is not considered. Deerinwater, 78 F.3d at 573 (Fed.Cir.1996) (holding that OPM lacks the authority to consider an untimely application); cf. Killip v. Office of Pers. Mgmt., 991 F.2d 1564, 1570 (Fed.Cir.1993) (holding that OPM is not permitted to consider retirement elections where the statute does not grant authority to do so).

II

McLaughlin was employed by the Department of the Navy as a Supervisory Housing Management Assistant. On January 29, 2000, McLaughlin resigned, citing the stress, "minimal awards and/or promotions," and her feeling that she had "not been recognized or appreciated for [her] cost-saving efforts and workload." At the time of her retirement, McLaughlin was enrolled in FERS.

According to a medical evaluation dated January 4, 2001, McLaughlin began experiencing paresthesias in her right face, arm, and leg as early as November of 2000. Dr. Nash, the physician performing the evaluation, opined that McLaughlin's symptoms could have been caused by seizures or multiple sclerosis ("MS"). Dr. Nash's evaluation reported McLaughlin's mental status as normal. To further investigate McLaughlin's symptoms, Dr. Nash ordered an EEG and an MRI. On January 15, 2001, Dr. Nash reviewed the results and diagnosed McLaughlin with MS. Dr. Nash again noted that [McLaughlin's] "mental status and neurological examination are normal." Dr. Nash further noted that McLaughlin "took the diagnosis very well." On January 19, 2001, McLaughlin received a second opinion confirming the diagnosis of MS. The second opinion was given by Dr. Holland. In a letter dated August 8, 2001, Dr. Holland stated that McLaughlin's "other major complaint [on January 19, 2001] was some depression."

On January 29, 2001, the one-year time period prescribed by 5 U.S.C. § 8453 for McLaughlin to file an application for disability retirement expired.

On July 12, 2001, OPM received McLaughlin's application for disability retirement. The application claimed McLaughlin's diseases or injuries to be MS, depression, and migraines. It further stated that she had become disabled before January 28, 2001, but that the exact date was unknown.

On July 24, 2001, McLaughlin requested that OPM waive the statutory filing period. On August 8, 2001, Dr. Holland wrote the above-referenced letter in support of McLaughlin. The letter does not state that McLaughlin was mentally incompetent during the year following her separation. On September 4, 2001, McLaughlin was evaluated by Dr. Spiegel who concluded that: "It is belief that the patient was profoundly depressed during the time period requiring her to act on [retirement and health insurance] and, as a result of this depression was unable to do so."

OPM denied McLaughlin's request for a waiver because a review of the letters submitted by Drs. Nash, Holland, and Spiegel did not provide sufficient medical documentation that McLaughlin was incompetent during the relevant statutory period. McLaughlin requested reconsideration, and OPM affirmed its initial decision.

McLaughlin appealed to the Board. The administrative judge ("AJ") considered the medical evidence, as well as testimonial evidence from McLaughlin, her father, and a friend. Concluding that the submitted "medical evidence does not establish that the appellant was mentally incompetent during the one-year filing period at issue," the AJ affirmed the decision of OPM. McLaughlin v. Office of Pers. Mgmt., No. DC844E020184-I-1 (M.S.P.B. Apr.12, 2002). The decision became final when the Board denied McLaughlin's petition for review. McLaughlin v. Office of Pers. Mgmt., No. DC844E020184-I-1, 2002 WL 31188838 (M.S.P.B. Sept.19, 2002). McLaughlin timely appealed to this court. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(a)(9) (2000).

III

In this case, a former federal employee seeks review of a final decision of the Board that she was not entitled to a waiver of the one-year statutory filing deadline provided in 5 U.S.C. § 8453 because her submitted medical evidence did not establish that she was mentally incompetent during the year following her resignation. We first address the question of what standard of review we apply to that decision.

A

As a general rule, we affirm a decision of the Board unless it is arbitrary, capricious, an abuse of discretion, not in accordance with the law, or unsupported by substantial evidence. See 5 U.S.C. § 7703(c) (2000); Marino v. Office of Pers. Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001). However, in cases involving disability retirement this court is precluded, in part, from that level of review by Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985).

Lindahl addressed an appeal arising under the Civil Service Retirement System (CSRS).2 The statutory section at issue in Lindahl, section 8347(c), currently reads in relevant part: The Office shall determine questions of disability and dependency arising under this subchapter. Except to the extent provided under subsection (d) of this section, the decisions of the Office concerning these matters are final and conclusive and are not subject to review. 5 U.S.C. 8347(c) (2000). During the time relevant to this appeal, the language, concerning these matters are final and conclusive and are not subject to review has not changed. Compare 5 U.S.C. 8347(c), with Lindahl, 470 U.S. at 773, 105 S.Ct. 1620.

Lindahl involved a former Navy employee who filed an application for disability retirement based on the disability of acute and chronic bronchitis. Id. at 775, 105 S.Ct. 1620. The Board affirmed OPMs denial of disability retirement because Lindahl had not proved that his disability [was] severe enough to prevent useful, efficient, and safe performance of the essential duties of the position from which [Lindahl was] seeking retirement. Id. at 776, 105 S.Ct. 1620 (citations omitted).

Lindahls case eventually made its way to this court, where, en banc, we held that the language of section 8347(c) stating that the decisions of [OPM] concerning [questions of disability] are final and conclusive and are not subject to review, prevented judicial review of Lindahls case. Lindahl v. Office of Pers. Mgmt., 718 F.2d 391, 393 (Fed.Cir.1983) (It is difficult to conceive of a more clear-cut statement of congressional intent to preclude review than one in which the concept of finality is thrice repeated in a single sentence.).

Reversing, the Supreme Court explained that our interpretation of final and conclusive and are not subject to review was overbroad because we failed to distinguish between the factual determinations concerning disability questions and other questions of law and procedure pertaining to disability retirement. In the Courts words:

We do not share the Federal Circuit's certainty with...

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