NOTE: This disposition is nonprecedential.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

______________________ 

BRENDA JOHNSON, San Diego, CA, pro se.

LAUREN MOORE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C.

MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D. AUSTIN. 

______________________ 

Before MOORE, WALLACH, and HUGHES, Circuit Judges.

PER CURIAM. 
2 JOHNSON v. OPM

Brenda Johnson appeals the Final Order of the Merit 

Systems Protection Board (“MSPB”), which denied 

Ms. Johnson’s petition for review of an administrative 

judge’s Initial Decision denying as untimely her application for disability retirement annuity and affirmed the 

Office of Personnel Management’s (“OPM”) reconsideration decision. 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. 

BACKGROUND

Between 1973 and 1990, Ms. Johnson was employed 

by several Federal Government agencies. Resp’t’s 

App. 30–34. On May 5, 1990, Ms. Johnson resigned from 

her last federal 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. The OPM responded by letter, stating that 

Ms. Johnson’s application did not include the required 

Standard Form 2801 (“SF-2801”), Application for Immediate Retirement. Id. at 52. In August 2014, Ms. Johnson 

submitted the SF-2801 to complete her application. Id.

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 

separation 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] separated from the 

[f]ederal service on May 5, 1990” and “the application . . . was not filed with OPM until July 15, 2014,” the 
JOHNSON 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. Johnson’s application). Ms. Johnson timely filed a reconsideration request, appending a physician’s consultation report 

and other documentation regarding her wrist injury, id.

at 65–77, but the OPM denied Ms. Johnson’s reconsideration request on the same grounds, id. at 81–83.

Ms. Johnson appealed the OPM’s denial of her application to the MSPB. Id. at 86. In its Initial Decision, the 

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

granting the petition for review,” and affirmed the Administrative Judge’s Initial Decision. Id. 

Ms. Johnson appealed. We have jurisdiction pursuant 

to 28 U.S.C. § 1295(a)(9) (2012). 

DISCUSSION

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 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). 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 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 
4 JOHNSON v. OPM

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 Was 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.

The record demonstrates, and the parties do not contest, that Ms. Johnson separated from federal 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 federal service, Johnson, 2016 WL 

910505 at ¶¶ 10−15, and nothing in the record warrants a 

different conclusion.1 Thus, based on the record before 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. Johnson 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 constitute 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–

8193, unspecified medical guidelines requiring that the 

patient reach maximum medical improvement (“MMI”) 

before a disability determination is reached, and violations of the Civil Code of California, see Pet’r’s Br. 10; 

Johnson v. Office of Pers. Mgmt., No. 2016-2005, Docket 

No. 28 at 2–3 (Fed. Cir. Aug. 3, 2016); id., Docket No. 29 

at 2–3 (Fed. Cir. Aug. 3, 2016). These arguments are

meritless. First, the 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 requirements of unspecified medical guidelines do not supersede

the filing requirements in § 8337(b), and even if they did, 

Ms. Johnson’s 2014 application still was filed more than 

one year after she reached MMI in 2006. Pet’r’s App. 4. 

Finally, California law is inapplicable because federal 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 . . . .”).

CONCLUSION

We have considered Ms. Johnson’s remaining arguments and find them unpersuasive. For these reasons, 

the Merit Systems Protection Board’s Final Order is 

AFFIRMED

COSTS

No costs.