Carlson v. Opm , 556 F. App'x 954 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LISA BROOKS CARLSON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3112
______________________
Petition for review of the Merit Systems Protection
Board in No. DC831E130148-I-1.
______________________
Decided: February 10, 2014
______________________
LISA BROOKS CARLSON, of Virginia Beach, Virginia,
pro se.
ERIC E. LAUFGRABEN, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and MARTIN F.
HOCKEY, Assistant Director.
______________________
2 CARLSON v. OPM
Before RADER, Chief Judge, REYNA, and WALLACH, Circuit
Judges.
PER CURIAM.
In this federal employment case, Petitioner Lisa
Brooks Carlson appeals the Merit Systems Protection
Board’s (“Board”) final decision affirming the Office of
Personnel Management’s (“OPM”) determination denying
her application for disability retirement under the Civil
Service Retirement System (“CSRS”) as untimely filed.
Carlson v. Office of Pers. Mgmt., No. DC-831E-13-0148-I-1
(M.S.P.B. Mar. 19, 2013). The Board also found the
record did not allow waiver of the applicable filing dead-
line. Because substantial evidence supports the Board’s
decision, this court affirms.
BACKGROUND
Ms. Carlson was employed as a Window Clerk by the
U.S. Postal Service (“agency”) beginning on February 25,
1978. The record shows that on May 24, 1993, Ms. Carl-
son suffered an on-the-job injury. Despite this injury,
Doctors informed Ms. Carlson that she was to remain at
work full-time under the medical restriction of using an
appropriate chair. On April 21, 1994, however, Ms.
Carlson left work, and on April 28, 1994, she was in-
formed by letter that she was considered absent without
leave (“AWOL”). After a grievance Ms. Carlson filed with
the American Postal Workers Union was resolved, the
agency officially removed her from service on March 21,
1995.
In February 1996 and December 2002, the Office of
Workers’ Compensation Programs (“OWCP”) denied Ms.
Carlson’s “claims for lost wages stemming from her April
21, 1994 condition. Specifically, the OWCP found that
Ms. Carlson’s alleged disability was not causally related
to her 1993 job-related injury.” Carlson v. Merit Sys.
Protection Bd., 446 F. App’x 308, 309 (Fed. Cir. 2012).
CARLSON v. OPM 3
Although the agency ultimately separated her for being
AWOL (a for-cause reason), Ms. Carlson contended that
she left work because of pain, and therefore, her absence
was due to her compensable back injury, entitling her to
restoration rights. On July 23, 2010, Ms. Carlson “ap-
pealed to the Board alleging that the agency denied her
restoration rights following a compensable injury.” Id.
The Board determined that it lacked jurisdiction to
hear Ms. Carlson’s case because she failed to make a non-
frivolous allegation that her separation from the agency
was because of a compensable injury and not because she
was AWOL. This court affirmed. Id.
On September 20, 2010, Ms. Carlson submitted an
incomplete application for immediate retirement benefits
under CSRS. OPM received her incomplete application on
or about October 7, 2010. Ms. Carlson answered “Un-
known” to a question on the application asking about her
date of separation from the agency.
Ms. Carlson submitted a corrected retirement applica-
tion claiming that she suffered from four herniated discs
with stenosis and double major thoracolumbar scoliosis.
Ms. Carlson “argued that she was unable to perform the
duties of her Window Clerk job because she could not sit,
stand, or walk for long periods and could not lift packages
or trays.” Resp’t’s App. (“App.”) 25. Ms. Carlson alleged
“that she became disabled from her position in approxi-
mately April 1994.” Id.
By letter dated May 13, 2011, OPM notified Ms.
Carlson that her application for disability retirement was
untimely filed because she had filed it after the required
time limit of one year after her separation. OPM notified
her “that this requirement could only be waived if she was
mentally incompetent at the time of separation or became
incompetent within one year thereafter.” App. 26. The
letter directed Ms. Carlson to provide evidence for a
competency determination within thirty days.
4 CARLSON v. OPM
Ms. Carlson did not produce any evidence, and in a
letter dated June 23, 2011, OPM informed Ms. Carlson
that her application was dismissed. Ms. Carlson timely
requested reconsideration of OPM’s decision, and thereaf-
ter, in a letter dated May 7, 2012, OPM affirmed its
earlier decision. Ms. Carlson appealed to the Board. The
appeal however was dismissed at OPM’s request upon Ms.
Carlson submitting evidence and medical documents
pertaining to her mental competency.
After reviewing Ms. Carlson’s newly submitted evi-
dence, on October 22, 2012, OPM issued a decision yet
again rejecting Ms. Carlson’s application as untimely
filed. OPM concluded that the newly submitted evidence
did not prove that Ms. Carlson was mentally incompetent
and lacked the capacity to file a timely application for
disability retirement. Ms. Carlson appealed that decision
to the Board.
On March 19, 2013, in an initial decision, the Board
affirmed OPM’s decision. The Board found that OPM did
not receive Ms. Carlson’s retirement application until
October 7, 2010, which was over fifteen years after her
separation from service on March 21, 1995, and well past
the one-year filing deadline. The Board also determined
that Ms. Carlson’s failed to show medical incompetency
required to waive the one-year filing deadline. The initial
decision became the Board’s final decision on April 23,
2013. [A35] Ms. Carlson timely appealed to this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).
DISCUSSION
Our review of a decision of the Board is circumscribed
by statute. We can set aside a Board decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012). “A Board decision is
CARLSON v. OPM 5
unsupported by substantial evidence when it lacks such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” McLaughlin v. Office
of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004)
(internal quotation marks and citation omitted).
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.
“[M]ental 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). This court has also recog-
nized that waiver of the time limit established in
§ 8337(b) “may lie against the agency when procedural
error, in contravention of the agency’s established duties,
results in derogation of the employee’s rights.” Johnston
v. Office of Pers. Mgmt., 413 F.3d 1339, 1342 (Fed. Cir.
2005) (remanding to determine whether petitioner re-
ceived the requisite notice that his employment had been
formally terminated and advising him of his options).
Substantial evidence supports the Board’s decision
denying Ms. Carlson’s retirement application as untimely.
Ms. Carlson’s application was filed more than fifteen
years after her separation from federal service. Thus,
unless the record shows that Ms. Carlson was not given
notice of her removal from federal service or that she was
mentally incompetent during the relevant time period,
Ms. Carlson’s application must be denied as untimely.
The Board found it more likely than not that Ms.
Carlson was on notice that she was removed from federal
service effective March 21, 1995. The Board noted that
6 CARLSON v. OPM
“less than one month after [Ms. Carlson’s] separation
date[, on April 11, 1995, she] completed an Application for
Refund of Retirement Deductions wherein she stated that
her Federal employment had ended on [March 21, 1995].”
App. 12. The record reflects that OPM, on June 22, 1995,
authorized a payment of $20,452.79 in response to Ms.
Carlson’s application. Thus, the Board’s finding that Ms.
Carlson was more likely than not on notice that her
effective removal date was March 21, 1995 is supported
by the record.
The Board likewise determined that Ms. Carlson’s ev-
idence was insufficient to show that she was mentally
incompetent as of the date of her removal on March 21,
1995, or during the one-year period thereafter. Ms.
Carlson claims to have been suffering from chronic pain
and severe depression as a result of her on-the-job-injury.
To substantiate her contention, Ms. Carlson submitted
letters from a doctor and a physical therapist, which
stated that she is “totally disabled.” App. 13. In addition,
Ms. Carlson testified that during the relevant time period
she suffered from personal issues ranging from her hus-
band leaving the family to the foreclosure of her home
causing further emotional stress. Ms. Carlson’s mother,
Ms. Edith Harryman, and Ms. Carlson’s son, Mr. Ian
Carlson, supported Ms. Carlson’s contention with written
statements and testimonies of their own.
Despite Ms. Carlson’s showing, the Board determined
that the evidence was lacking as of the date of her remov-
al on March 21, 1995, or during the one-year period
thereafter. The Board found the fact that Ms. Carlson
was capable of filing an application for a refund of her
retirement deductions one month after she was removed,
and the fact that she filed an incomplete and a corrected
retirement application and various legal documents
throughout the fifteen years actually showed Ms. Carl-
son’s competence in handling her personal affairs. Thus,
the record supports the Board’s finding that Ms. Carlson
CARLSON v. OPM 7
did not meet her burden of establishing mental incompe-
tency.
The Administrative Judge expressly recognized Ms.
Carlson’s circumstances as both unfortunate and compel-
ling. Upon review of the record, this court is also sympa-
thetic to her plight. Ms. Carlson, her mother, and her son
all provide poignant testimony. We, like the Board,
however, are bound to apply the law as written. The
Board correctly applied the law and its decision was not
arbitrary or capricious, and was supported by the record.
AFFIRMED
No costs.