N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ BRENDA JOHNSON, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent

______________________

2016

- 2005

______________________ Petition for review of the Merit Systems Protection Board in No. SF

- 0831E

- 15

- 0377 -I- 1.

______________________

Decided: November 3 , 2016

______________________

B RENDA J OHNSON , San Diego, CA, pro se.

L AUREN M OORE , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, for respondent. Also represented by B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., S COTT D. A USTIN

.

______________________

Before M OORE , W ALLACH , and H UGHES , Circuit Judges.

P ER C URIAM

.JOHNSON v. OPM 2

Brenda Johnson appeals the Final Order of the Merit Systems Protection Board (“MSPB” ), which denied Ms. Johnson’s petition for review of an a dminis trative j udge’s Initia l Decision denying as untimely her applic ation for disability retirement annuity and affirmed the Office of Personnel Management’s (“OPM”) r econsider ation d ecision. See Johnson v. Office of Pers. Mgmt.

, No. SF- 831E

- 15

- 0377 -I- 1, 2016 WL 910505 ( M.S.P.B. Mar. 9, 2016)

. We affirm

. B ACKGROUND

Between 197 3 and 1990, Ms. Johnson was employed by several Federal Gove rnment agencies. Resp’t’s App. 30

– 34. On May 5, 1990, Ms. Johnson resigned from her last f ederal position, id. at 30, and subsequently withdrew the retirement contributions she made during her employment, id. at 35

– 36

. In July 2014, Ms. Johnson submitted a Statement of Disability to OPM seeking disability retirement annuity because of a right wrist injury that allegedly occurred in 1984 as a result of her job duties with the Government

. Id. at 37

– 51. T he OPM responded by letter, stating that Ms. Johnson’s application did not include the required Standard Form 2801 (“ SF- 2801 ”) , Application for Imm ediate Retirement. I d. at 52

. In Augus t 2014, Ms. Johnson submitted the SF -2 801 to complete her application. I d.
at 53

– 58.
In December 2014, the OPM informed Ms. Johnson that “[t]he law requires that applications for disability retirement [annuity] be filed with OPM either prior to separati on from the service or within one year thereafter,” unless the “former employee was mentally incompetent at the time of separation or became incompetent within one

year thereafter.” Id. at 59. Because “[r]eview of the record show[ed] that [Ms. Johnson] s eparated from the [f] ederal service on Ma y 5, 1990” and “the applic ation . . . was not filed with OPM until July 15, 2014,” theJOHNSON v. OPM 3

OPM informed Ms. Johnson that her application would be dismissed absent additional evidence that waiver was appropriate. Id. ; see id. at 61

– 62 (dismissing Ms. Joh nson’s application). Ms. Johnson timely filed a reconside ration request

, appending a p hysician’ s c onsulta tion r eport and other documentation regarding her wrist injury

, id.
at 65

– 77 , but the OPM denied Ms. Johnson’s rec onsider ation request on the same grounds, id. at 81

– 83.
Ms. Johnson appealed the OPM’s denial of her appl ication to the MSPB. Id. at 86. In its Initial Decision, t he Administrative Judge affirmed the OPM’s denial of Ms. Johnson’s reconsideration request on all grounds. Id

. at 22

– 23. Ms. Johnson filed a petition for review of the Initial Decision

. Johnson , 2016 WL 910505 at ¶ 1. In its Final Order, the MSPB denied Ms. Johnson’s petition, holding that she “ha[d] not established any basis

. . . for

gran ting the petition for review,” and affirmed the Admi nistrative Judge’s Initial Decision. Id.
Ms. Johnson appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012)

. D ISCUSSION

I. Standard of Review and Filing Requirements

We set aside the MSPB ’s decision only if it is “(1) arbitrary, capricious, an abuse of discretion, or othe rwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev idenc e . . . .” 5 U.S.C. § 7703(c) (2012)

. We review the MSPB’s legal conclusions de novo. Welshans v. U.S. Postal Serv ., 550 F.3d 1100, 1102 (Fed. Cir. 2008).
An application for disability retirement annuity must be filed with the OPM “before [an] employee . . . is sep arated 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 yearJOHNSON v. OPM 4

thereafter,” the applicant was “mentally incompetent,” and “the application is filed with the [OPM] within [ one ] year from the date of restoration of

. . . competency.” Id.

II. Ms. Johnson’s Application W as Untimely

The sole issue before the court is whether the OPM properly rejected Ms. Johnson’s application as untimely, a conclusion that the MSPB affirmed. We agree that Ms. Johnson’s application was untimely.

T he record demonstrates, and the parties do not co ntest, that Ms. Johnson separated from f ederal service on May 5, 1990. Resp’t’s App. 30. As a result

, the statutory deadline for filing occurred on May 5, 1991. And because the facts are not in dispute, we must assess whether the MSPB properly applied the law to these undisputed facts.
The MSPB properly concluded that the time limit in § 8337(b) barred Ms . Johnson’s application as untimely. Ms. Johnson filed her application in 2014 , i.e., 23 years after the statutory filing deadline mandated by § 8337(b). As to waiver, the MSPB held that the evidence submitted by Ms. Johnson said nothing about her mental status at the time she ended her f ederal service, Johnson , 2016 WL 910505 at ¶¶ 10−15 , and nothing in the record warrants a different conclusion. 1 Thus

, based on the record befo re it, the statute required the OPM to reject Ms. Johnson’s application as untimely, and the MSPB properly affirmed the OPM’s decision to do so

.

1 At various points in her informal brief, Ms. Joh nson appears to raise her mental status anew. See Pet’r’s Br. 3, 11, 18

– 19 . However, she does not substantiate these assertions with evidence, and unsubstantiated assertions do not equal evidence. See Lucent Techs., Inc. v. Gateway, Inc. , 580 F.3d 1301, 1327 (Fed. Cir. 2009) (“[S] peculation does not con stitute substantial evidence

. ” (internal citations and quotation omitted))

.JOHNSON v. OPM 5

Finally, Ms. Johnson alleges violations of the Federal Employee Compensation Act (“ FECA ”) , 5 U.S.C. § § 8101

– 819 3, unspecified medical guidelines requiring that the patient reach maximum medical improvement (“MMI”) before a disability determination is reached , and viol ations of the Civil Code of California

, see Pet’r’s Br. 10; Johnson v. Office of Pers. Mgmt. , No. 2 016

- 2005 , Docket No. 28 at 2 –3 (Fed. Cir. Aug. 3 , 2016) ; id. , Docket No. 29 at 2 –3 (Fed. Cir. Aug. 3 , 2016 ). T hese arguments are meritless. First, t he FECA precludes judicial review of decisions made by the Secretary of Labor pursuant to that statutory scheme

. See 5 U.S.C. § 8128(b)(2) (stating that the Secretary’s actions under this subchapter are “not subject to review by

. . . a court”). Second, the requir ements of unspecified medical guidelines do not supersede the filing requirements in § 8337(b), an d even if they did, Ms. Johnson’s 2014 application still was filed more than one year after she reach ed MMI in 2006

. Pet’r’s App. 4. Finally, California law is inapplicable b ecause f ederal law (i.e., § 8337(b)) is determinative of Ms. Johnson’s appeal

. See LaRochelle v. Office of Pers. Mgmt. , 774 F.2d 1079, 1080 (Fed. Cir. 1985) (“OPM will consult state law where federal law is not determinative

. . . .”).

C ONCLUSION We have considered Ms. Johnson’s remaining arg uments and find them unpersuasive. For these reasons, the Merit Systems Protection Board’s Final Order is

AFFIRMED

C OSTS

No costs.