England v. Office of Personnel Management , 557 F. App'x 993 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEAN E. ENGLAND,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3164
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0841130178-I-1.
______________________
Decided: March 7, 2014
______________________
JEAN E. ENGLAND, of Portsmouth, Virginia, pro se.
ROBERT C. BIGLER, Trial Attorney, Commercial Litiga-
tion 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, BRYANT G. SNEE, Acting Director, and KIRK T.
MANHARDT, Assistant Director.
______________________
2 ENGLAND v. OPM
Before PROST, SCHALL, and O’MALLEY, Circuit Judges.
PER CURIAM.
Petitioner Jean E. England (“Ms. England”) appeals a
decision of the Merit System Protection Board (“MSPB”)
affirming the United States Office of Personnel Manage-
ment (“OPM”) decision denying Ms. England’s request to
change her irrevocable retirement coverage election
because she failed to establish that she was mentally
incompetent at the time of the election. As Ms. England’s
appeal does not demonstrate that the MSPB or OPM
decisions were unsupported by substantial evidence, we
affirm.
BACKGROUND
On September 15, 2006, Ms. England was notified of
an error regarding her retirement coverage and was given
the opportunity to elect Civil Service Retirement System
(“CSRS”) Offset coverage or Federal Employees’ Retire-
ment System (“FERS”) coverage. Respondent’s Appendix
(“RA”) 10. On October 4, 2006, Ms. England elected FERS
coverage. RA25. The form on which Ms. England made
her election stated that she “waive[d] [her] opportunity to
receive financial counseling from OPM,” “ha[d] reviewed
all the information relevant to [her] choice,” and under-
stood that her “choice of retirement plans is irrevocable.”
Id.
Ms. England subsequently attempted to change her
coverage election, arguing that she was mentally incom-
petent when she made her initial election due to depres-
sion and other mood and anxiety disorders. RA6-7; RA11-
12. On October 12, 2011, OPM denied Ms. England’s
request, finding that Ms. England had failed to provide
evidence showing that she was mentally incompetent at
the time of making her election. Ms. England requested
reconsideration of OPM’s decision on November 10, 2011,
and OPM affirmed its initial determination on August 8,
ENGLAND v. OPM 3
2012, agreeing that Ms. England had not proven she was
mentally incompetent when she elected FERS coverage.
On September 19, 2012, Ms. England appealed OPM’s
August 8, 2012 decision to the MSPB, and an administra-
tive judge affirmed on June 7, 2013. RA10-12. Ms. Eng-
land then petitioned for review of the administrative
judge’s initial decision, and the MSPB affirmed on Sep-
tember 9, 2013. England v. Office of Pers. Mgmt., No. DC-
0841-13-0178-I-1, 2013 MSPB LEXIS 4730, at *3-4 (Sept.
9, 2013). Ms. England now appeals to this court.
ANALYSIS
Our review of MSPB decisions is limited by statute.
We only set aside MSPB’s actions, findings, or conclusions
that are:
(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) (2012). “Under this standard, we will
reverse the MSPB’s decision if it is not supported by such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Haebe v. Dep’t of
Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (citation and
internal quotation marks omitted). Thus, this Court
“must determine whether, considering the record as a
whole, the agency’s evidence is sufficient to be found by a
reasonable factfinder to meet the evidentiary burden
applicable to the particular case.” Bradley v. Veterans
Admin., 900 F.2d 233, 234 (Fed. Cir. 1990).
Regarding Ms. England’s election of coverage, the law
is well settled that she “is not relieved from the conse-
quences of a written election absent a showing that men-
tal incompetence, duress or fraud is the reason for an
4 ENGLAND v. OPM
election one later seeks to void.” Collins v. Office of Pers.
Mgmt., 45 F.3d 1569, 1573 (Fed. Cir. 1995). Ms. England
carries the burden of proving by a preponderance of the
evidence that she should not be bound by her original
election of coverage for reasons of mental incompetence.
See 5 C.F.R. § 1201.56 (2014).
We find that substantial evidence supports the
MSPB’s determination that Ms. England has not proven
that she was mentally incompetent when she elected
FERS coverage on October 4, 2006. As the administrative
judge noted in her initial decision, Ms. England produced
evidence that she had a “history of serious mood and
anxiety disorders,” but she did not offer any evidence of
mental incompetence at the time she signed the election
form. RA11. Although Ms. England provided medical
records from 2005 and 2007, she did not produce any
records from 2006—the year in which she elected cover-
age. Id. Thus, there is no medical evidence directly
establishing incompetence at the time Ms. England made
her election. In addition, a medical record dated January
30, 2007—approximately three months after Ms. Eng-
land’s election—indicates that Ms. England was feeling
better and had “more control of her fate.” RA12. The
medical evidence closest in time to Ms. England’s election
of coverage does not support her claim of mental incompe-
tence, but instead undercuts it. As a consequence, we
decline to disturb the MSPB’s finding that Ms. England
has not met her burden of demonstrating mental incom-
petence.
In her informal brief to this court, Ms. England as-
serts her belief that the MSPB was “discriminating”
against her due to her “handicap.” She does not offer any
evidence of discrimination, however, or explain how the
MSPB allegedly engaged in discriminatory conduct. It
appears that she is merely reiterating her belief that it is
unfair to hold her to her original coverage decision be-
cause she was mentally incompetent when she made the
ENGLAND v. OPM 5
election. As set out above, however, there is substantial
evidence supporting the MSPB’s determination that she
did not prove mental incompetence at the relevant time.
To the extent Ms. England is raising a separate claim of
discrimination, we decline to consider this issue, as it was
not raised in the proceedings below. 1 See Gant v. United
States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Arguments
not made in the court or tribunal whose order is under
review are normally considered waived.”).
CONCLUSION
Because substantial evidence supports the MSPB’s
conclusion that Ms. England has not shown mental in-
competence at the time she elected FERS coverage, and
absent any direct evidence demonstrating such mental
incompetence at the time of election, we affirm the
MSPB’s decision determining that Ms. England’s election
cannot be revoked.
AFFIRMED
COSTS
Each party shall bear its own costs.
1 Even if Ms. England had asserted a disability dis-
crimination claim before the OPM and MSPB, it would be
beyond the jurisdiction of this Court to review such a
claim. See Kloeckner v. Solis, 568 U.S. ___, 133 S. Ct. 596,
603-04 (2012).