UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES E. BROWN, II,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

SF-844E-16-0508-I-1

DATE: March 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gregory A. Tibbs, Waldorf, Maryland, for the appellant.

Thomas Styer, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

¶1 The appellant has filed a timely petition for review of the initial decision 

that affirmed the final decision of the Office of Personnel Management (OPM) 

denying his application for disability retirement as untimely filed. Generally, we 

grant petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative judge’s rulings during either the course of 

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we conclude that the petitioner 

has not established any basis under section 1201.115 for granting the petition for 

review. Therefore, we DENY the petition for review and AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant, formerly employed by the Smithsonian Institution

(Smithsonian), resigned from Federal service in 2012. Initial Appeal File (IAF), 

Tab 5 at 30. More than 3 years after resigning, he filed an application for 

disability retirement under the Federal Employees’ Retirement System (FERS). 

Id. at 32-35. OPM issued a decision denying his disability retirement application

as untimely since it was filed more than 1 year after the appellant separated from 

service. Id. at 10-11 (citing 5 U.S.C. § 8453). OPM, however: (1) informed the 

appellant that the law permitted a waiver of the time limit if an employee showed

that he was mentally incompetent at the time of separation from service or within 

1 year thereafter; and (2) invited him to provide evidence showing that his delay 
3

was caused by mental incompetence. Id. at 10, 14. The appellant filed a request 

for reconsideration but indicated that he would not be providing any additional 

evidence.3 Id. at 7. 

¶3 OPM then issued a final decision sustaining its original decision that

dismissed the appellant’s disability retirement application as untimely filed. Id.

at 4-5. The appellant appealed the final decision to the Board and requested a 

hearing. IAF, Tab 1 at 3. During the hearing, he testified that his physical

condition prompted his resignation because it affected his lower extremities and

required bypass surgery followed by a 6-to-8-month recovery period. IAF, Tab 8, 

Hearing Compact Disc (HCD), Tab 9, Initial Decision (ID) at 4. He also testified 

that the Smithsonian did not notify him about the filing deadline when he 

resigned. ID at 4; HCD. The administrative judge issued an initial decision

affirming OPM’s final decision denying the disability retirement application as 

untimely filed. ID at 5. He reasoned that the appellant neither argued nor 

presented evidence that he untimely filed because of mental incompetence. ID

at 2-3. The administrative judge also found that the Smithsonian’s alleged failure 

to notify the appellant of the deadline was not a basis for waiver. 4 ID at 4-5. 

¶4 The appellant has timely petitioned for review. Petition for Review (PFR) 

File, Tab 1.5 He does not specify the nature of his challenges but offers, for the 

first time, medical documentation showing that: (1) before his resignation, he

 

3

The appellant’s disability retirement application did not elaborate on the nature of his 

disability. IAF, Tab 5 at 32-35. 

4

The appellant does not challenge this finding on review, and we see no basis to disturb 

it. See Chapman v. Office of Personnel Management, 110 M.S.P.R. 423, ¶ 11 (2009) 

(observing that an agency has no duty to inform a FERS employee who voluntarily 

resigns of the time limit for applying for disability retirement).

5 Although the appellant states that he is “requesting reconsideration,” PFR, Tab 1 

at cover page, we treat his request as a petition for review, 5 C.F.R. § 1201.114(a)(1)

(explaining that a petition for review is a pleading in which a party contends that an 

initial decision was incorrectly decided). 
4

suffered various physical conditions that necessitated a bypass surgery on his leg;

and (2) after his resignation, he was prescribed various medications, including 

anti-depressants and anti-anxiety medications. Id. at 1-27. OPM has not 

responded to his petition for review.

¶5 We read the appellant’s petition for review as asserting that the disability 

retirement filing deadline should have been waived under the statute. However, 

the relevant waiver statute, 5 U.S.C. § 8453, is inapplicable here. It provides that 

a waiver may be allowed only if an employee is mentally incompetent “at the date 

of separation from service or within 1 year thereafter.” During the proceeding 

below, the appellant unambiguously stated that he “was not claiming mental 

incompetence.” IAF, Tab 7 at 2. To the extent that the appellant is arguing, for 

the first time on review, that he qualifies for a waiver because he suffers from 

anxiety and depression, we decline to consider this new argument. See Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board 

need not consider an argument raised for the first time in a petition for review 

absent a showing that it is based on new and material evidence previously 

unavailable despite the party’s due diligence). 6 

¶6 On appeal, the appellant expressly stated that he was not claiming mental 

incompetence. ID at 2-3. In addition, he does not explain on review why he 

could not present his medical evidence, which is dated before the initial decision 

was issued, below. ID at 1; PFR File, Tab 1 at 20; see Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980) (observing that the Board will not consider

 

6 Moreover, an anti-depressant or anti-anxiety prescription cannot warrant a waiver of 

the filing deadline, given that an employee’s depression or anxiety does not 

automatically amount to mental incompetence envisioned by the statute. See Burton v. 

Department of Veterans Affairs, 83 M.S.P.R. 174, ¶ 7 (1999). Rather, the employee is 

required to explain why these conditions “impaired his ability to meet the . . . filing 

limits or seek an extension of time.” Id. Here, the appellant did not provide any such 

explanation.
5

new evidence submitted on review absent a showing that it was unavailable 

before the record closed despite the party’s due diligence). 

¶7 Accordingly, we discern no basis to disturb the administrative judge’s 

findings that waiver of the filing deadline was unwarranted and we find that OPM 

properly dismissed the appellant’s disability retirement application as untimely

filed.

NOTICE OF APPEAL RIGHTS7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

 

7

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and tha t such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 
7

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
8

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.8The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

 

8

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board