NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3154

MICHELLE WEST, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent. Michelle West , of Suitland, Maryland, pro se. Michael S. Dufault , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, fo r respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director and Kathryn A. Bleecker , Assistant Director. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3154
MICHELLE WEST,
Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT,
Respondent.

__________________ _________ DECIDED: September 11, 2007

__________________ _________ Before RADER, Circuit Judge , CLEVENGER, Senior Circuit Judge , and DYK, Circuit Judge

. RADER, Circuit Judge

. The Merit Systems Protecti on Board (“MSPB” or “Board”) affirmed the decision of the Office of Personnel Management (“OPM") to deny Michelle West's application for disability retirement under the Civil Se rvice Retirement System (“CSRS”). West v. Office of Pers. Mgmt. , No. DC-831E-07-0062- I-1 (M.S.P.B. Feb. 27, 2007). Discerning no error in the Board's ruling, this court affirms

.BACKGROUND Ms. West served as a security guard at the National Gallery of Art until her separation from that pos ition in 1999. Just over seven years later, on May 3, 2006, Ms. West submitted an application for disability retirement, claiming she suffered back pain and stress at work. In response, on Augus t 3, 2006, OPM sent Ms. West a letter informing her that her claim was untimely under 5 U.S.C. § 8337(b). That section requires claims for disability retirement to be filed within one year of separation. The August letter also explai ned conditions for waiver of th is one-year deadline. The letter explained that a former employee may s eek waiver on the basis of mental incompetence at the time of separation or within one year thereafter, so long as the employee filed disability retirement within one year after regaining mental competency or after the appointment of a guardian. A dditionally, the letter noted that Ms. West had not provided any medical or psychological records from the one-year period following her separation from the National Gallery to show mental incompetence. On August 6, 2006, Ms. West requested reconsideration of OPM’s decision, which OPM denied on October 18, 2006. Ms . West then appealed to the MSPB, where she argued before an administrative law j udge that she was suffe ring from extreme back pain, anxiety, and depression at all of t he relevant times, rendering her both physically and mentally inco mpetent to timely file for disabili ty retirement. West v. Office of Pers. Mgmt. , No. DC-831E-07-0062-I-1 (M. S.P.B. Dec. 11, 2006) (“Initial Decision ”), slip op. at 2-3. The administrative la w judge affirmed OPM’s decision because Ms. West had provided no evidence that her afflic tions rendered her mentally incompetent to apply for disability retirement during the year following her separati on. Initial Decision ,

2007-3154 2slip op. at 6. The Boar d subsequently denied Ms. West’s petition for review on February 27, 2007, rendering final the initial decision by the ad ministrative law judge. Ms. West timely filed a petiti on with this court for review. Before this court, Ms. West claims that she tried for over a year to have her doctor complete paperwork for OPM about her condition. She also noted that her doctor suggested in the first place that she leave her job as a security guard due to her poor health. Ms. West asserts that, had she applied for retirement benefits at or near the time of her separation from the Nation al Gallery, her applic ation probably would have been declined without a report from her physician. She also explains that she “reconsidered looking into [her] retirement ” after she was unable to continue with a different job that involved driving rather than physical labor. She left that new job due to a car accident that left her with an extreme fear of driving. DISCUSSION This court’s review of Board decisions is limited. The Board’s decision must be affirmed unless it is: (1) arbitrary, caprici ous, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsu pported by substantial evidence. 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003). This standard is unaffected where, as here, the question before the court involves mental incompetence as an excuse for untimely filings. McLaughlin v. Office of Pers. Mgmt. , 353 F.3d 1363, 1367 (Fed. Cir. 2004). An employee must file an application for disability retireme nt either before separation from service or wit hin one year of separation. 5 U.S.C. § 8337(b) (2000).

2007-3154 3The deadline may be waived 1 “for an employee or Memb er who at the date of separation from service or within 1 year t hereafter is mentally incompetent, if the application is filed with the Office within 1 year from t he date of restoration of the employee or Member to com petency or the appointment of a fiduciary, whichever is earlier.” Id. Mental incompetence, in turn, “is an inab ility to handle one's personal affairs because of either physical or mental dis ease or injury.” Rapp v. Office of Pers. Mgmt. , 483 F.3d 1339, 1341 (Fed. Cir. 2007) . Nonetheless, a “minima l capacity” to manage one’s own affairs does not preclude a finding of incompetence. French v. Office of Pers. Mgmt. , 810 F.2d 1118, 1119 (Fed. Cir. 1987) (“T he claimant is not required to have been a raving lunatic contin uously since [the relevant year].”) The Board has long required medical evidence to substantiate a claim of mental incompetence. See Thieken v. Office of Pers. Mgmt. , 56 M.S.P.R. 192, 194 (1993), aff’d , 11 F.3d 1074 (Fed. Cir. 1993), cert. denied , 511 U.S. 1037 (1994). Not ably, the medical evidence must substantiate a mental problem. See id. In this case, the Board properly reje cted Ms. West’s assertion of mental incompetence. Ms. West’s evidentiary showin g, consisting of her own subjective beliefs and the observations a friend, Initial Decision , slip op. at 5, did not amount to sufficient evidence of a mental conditi on. Although Ms. West offered some medical evidence regarding her back pain and anxiet y, she provided no medical evidence whatsoever that these conditions rendered her mentally inco mpetent to timely apply for disability retirement. The Board properly concluded that Ms. West’s seven-year delay in applying

1 Although § 8337(b) provides that the one- year time limitation “may” be waived, OPM does not have the discretion to reject an applicat ion for waiver having an adequate factual basis. See French , 810 F.2d at 1119.

2007-3154 42007-3154 5 for disability retirement was not excusable due to mental incompetence. Ms. West’s fear of driv ing and subsequent asserted unemp loyability (precipitated by a car accident that occurred on a different job after her separati on from the National Art Gallery) also have no bearing on Ms. West’s mental competency to apply for disability retirement within the year after her separation. Because Ms. West offered no medical evidence to establish her mental in competence during the year following her separation from the National Gallery of Art, the Board wa s within its discretion to conclude that Ms. West is not entitled to a waiver under § 8337(b). The Board’s decision is therefore affirmed

.