Dela Rosa v. Office of Personnel Management , 544 F. App'x 961 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CESAR A. DELA ROSA,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3078
______________________
Petition for review of the Merit Systems Protection
Board in No. SF831E120107-I-1.
______________________
Decided: October 15, 2013
______________________
CESAR A. DELA ROSA, of La Union, Philippines, pro se.
JOSHUA A. MANDLEBAUM, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
______________________
Before NEWMAN, PLAGER, and CHEN, Circuit Judges.
2 DELA ROSA v. OPM
PER CURIAM.
Cesar Dela Rosa seeks review of a final decision of the
Merit Systems Protection Board (the “Board”) finding that
his application for disability retirement benefits was
untimely. Dela Rosa v. Office of Pers. Mgmt., 119
M.S.P.R. 244 (2013). Because substantial evidence in the
record supports the Board’s decision, we affirm.
I
Mr. Dela Rosa retired from the United States Navy on
October 29, 1980, after serving for twenty years. He then
worked as a civilian for the Department of the Navy from
December 18, 1981 until November 28, 1988, when he
resigned and separated from federal service. Id. at 2.
In early 2009, Mr. Dela Rosa suffered a stroke. In
September 2010, he filed an application for disability
retirement related to his federal civilian service with the
Office of Personnel Management (“OPM”). After attempts
to contact him, OPM sent Mr. Dela Rosa a letter in May
2011 to inform him that his request for disability retire-
ment was untimely because “[t]he law requires that [such]
applications . . . be filed with OPM either prior to separa-
tion from the service or within one year thereafter.”
Resp’t’s App. 36 (citing 5 U.S.C. § 8453). OPM also noted
that it could waive the statutory filing deadline if Mr.
Dela Rosa could provide evidence to show that (1) he was
unable to handle his personal affairs due to either physi-
cal or mental disease or injury (in other words, “mentally
incompetent”) at the time of or within one year of his
separation, and (2) he remained mentally incompetent at
least until one year before he filed for disability retire-
ment benefits.
In response, Mr. Dela Rosa stated that he was unable
to file for disability retirement between 1988 and 2010
because he suffered from depression after a positive result
from a Tuberculosis (“TB”) skin test that took place in
DELA ROSA v. OPM 3
1984. Id. at 39. Mr. Dela Rosa further explained that he
“cannot manage to [be] reemployed again due of [his]
having ‘hypertension’ and the need to take a full rest in
order to ease from [his] illness.” Id. at 40. His response
also suggested he suffered from additional ailments as
well. Id.
Mr. Dela Rosa submitted medical records to support
his disability claim. Those records indicated that he was
a “PPD converter”—someone who experienced a positive
skin test for TB after testing negative previously. The
documentation did not reveal any further testing for TB
or any definitive TB diagnosis.
On June 21, 2011, OPM rejected Mr. Dela Rosa’s dis-
ability retirement application because it was “not filed
within the time limit set by law.” Id. at 48. It found “no
objective medical findings to establish incompetence or
that [he] could not manage [his] affairs appropriately at
the time of [his] separation on November 28, 1988, or
within one year thereafter.” Id.
Mr. Dela Rosa requested reconsideration and submit-
ted additional medical records. OPM again found that the
“evidence presented is not sufficient to show that [Mr.
Dela Rosa was] mentally incompetent during the period
November 28, 1988 to present, and [he] did not file an
application for the disability retirement within the time
limit provided by law.” Id. at 55.
Mr. Dela Rosa appealed OPM’s decision to the Board.
The administrative judge (“AJ”) for the Board affirmed,
finding that Mr. Dela Rosa’s disability application was
untimely, since there was insufficient evidence to estab-
lish that he was incompetent. The AJ quoted from a
recent medical report, dated August 16, 2011, which
stated that Mr. Dela Rosa’s “cognitive skills have re-
mained intact,” despite his 2009 debilitating stroke.
Id. at 20. That same report also indicated that he tested
positive for “mild depression,” but negative for depression.
4 DELA ROSA v. OPM
Id. at 96-97. In the AJ’s view, the record did not support
Mr. Dela Rosa’s position that “he was incompetent to
manage his affairs between the date of separation and the
date he filed his disability retirement application, Sep-
tember 16, 2010.” Id. at 21.
The Board declined Mr. Dela Rosa’s petition to recon-
sider the AJ’s decision. It explained that there was no
reason to disturb the AJ’s findings and reasoning.
Id. at 55.
Mr. Dela Rosa filed a timely petition to review the
Board’s final decision. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II
Our review of Board decisions is limited. We must af-
firm the Board’s decision unless it was (1) arbitrary,
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); McLaughlin v. Office of Pers. Mgmt.,
353 F.3d 1363, 1367-68 (Fed. Cir. 2004) (explaining that
our standard of review is unaffected in cases concerning
waiver of filing deadlines due to mental incompetence).
An application for disability retirement ordinarily
must be filed with OPM “before [an] employee . . . is
separated from the service or within 1 year thereafter.”
5 U.S.C. § 8337(b). That time limitation may be waived if,
“at the date of separation from service or within 1 year
thereafter,” the applicant was “mentally incompetent,”
and “the application is filed with [OPM] within 1 year
from the date of restoration of . . . competency.” Id.
Mental incompetence is “an inability to handle one’s
personal affairs because of either physical or mental
disease or injury.” Rapp v. Office of Pers. Mgmt., 483 F.3d
1339, 1341 (Fed. Cir. 2007).
DELA ROSA v. OPM 5
III
There is no dispute that Mr. Dela Rosa’s application
for retirement disability was filed more than twenty years
after his separation from federal service. Thus, absent
mental incompetency during the relevant time period, Mr.
Dela Rosa’s disability claim may not be granted.
After reviewing the record, we see no error in the
Board’s finding that there was insufficient evidence to
establish that Mr. Dela Rosa was mentally incompetent
during the statutorily relevant time period. Mr. Dela
Rosa claims that he was mentally incompetent due to
depression brought on by a combination of factors, includ-
ing a positive TB skin test. However, despite that test
result, Mr. Dela Rosa was never definitively diagnosed
with TB. In addition, that test occurred in 1984—four
years prior to his separation, and during that time frame
he was cleared for multiple subsequent service assign-
ments with the Department of the Navy.
Mr. Dela Rosa also states that he has suffered from
other maladies resulting from different causes, including
exposure to asbestos and Agent Orange. Our thorough
review of the record found no evidence, however, that any
of these ailments rendered him mentally incompetent at
any point between his November 28, 1988 separation date
and the date that he filed for disability benefits twenty-
two years later. The medical records he submitted do not
mention any mental impairment—only a reference to
“mild depression,” after his 2009 stroke. Resp’t’s App. 20.
Moreover, his medical provider found at that time—and
the administrative judge specifically noted—that Mr. Dela
Rosa’s “cognitive skills . . . remained intact.” Id. at 20.
We therefore conclude that the Board’s finding that
Mr. Dela Rosa was not mentally incompetent during the
relevant statutory time period is supported by substantial
evidence. See Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938) (explaining that substantial evidence is
6 DELA ROSA v. OPM
that which a “reasonable mind might accept as adequate
to support a conclusion”); Dowling v. Office of Pers.
Mgmt., 393 F.3d 1260, 1262 (Fed. Cir. 2004) (same).
Accordingly, the Board did not err by affirming OPM’s
rejection of Mr. Dela Rosa’s retirement disability claim as
untimely. The petition for review is denied.
AFFIRMED
COSTS
No costs.