NOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3014 EDWARD P. MENDIOLA, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. Edward P. Mendiola , of San Antonio, Texas, pro se. Tara J. Kilfoyle , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Martin F. Hockey , Assistant Director. Appealed from: Merit Syst ems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3014

EDWARD P. MENDIOLA, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
Petition for review of the Merit Syst ems Protection Board in DA831E070110-I-1.

___________________________ DECIDED: June 24, 2008

___________________________ Before NEWMAN and GAJARSA, Circuit Judges, and WARD, District Judge

. ∗ PER CURIAM. Petitioner Edward P. Mendiola, appearing pro se , appeals the final order of the Merit Systems Protection Board (MSPB ) affirming the Office of Personnel Management’s (OPM) dismissal of his application for disability re tirement under the Civil Service Retirement System (CSRS) as untimely. 1 We affirm

.

∗ Honorable T. John Ward, United States District Court for the Eastern District of Texas, sitting by designation. 1 Mendiola v. OPM , Docket No. DA-831E-07-0110-I- 1 (M.S.P.B. Aug. 9, 2007).2008-3014 2 BACKGROUND Mr. Mendiola served as a machine tool oper ator at Kelly Air Force Base in San Antonio until he was separated from servic e on September 11, 1999. He filed an application for CSRS disability retirement in June 2005; OPM re sponded that 5 U.S.C. §8337(b) requires that applications for CSRS di sability retirement be filed with OPM before separation from service or within one year t hereafter, with that r equirement waived only when the former employee was mentally incompet ent within one year a fter separation. The OPM letter stated that Mr. Mendiola’s applic ation was untimely and requested that he submit evidence relevant to any competen cy determination. Mr. Mendiola submitted affidavits from his wife and a friend stating that he began suffering from various medical conditions and had undergone several surgeries afte r his separation. The OPM dismissed the application as untimely, stating that the documentati on Mr. Mendiola provided was insufficient to show that he wa s unable to file his application within the one-year limit. Mr. Mendiola requested reconsiderat ion, and OPM, affirming its di smissal, stated that Mr. Mendiola had submitted additional medical docum entation of his medical conditions, but that none of the evidence sugges ted that his medical conditi ons would have rendered him mentally incompetent within a year of his separation from service. Mr. Mendiola appealed to the MSPB. He st ated that he was unaware of the time limit and that he had waited to apply for disability retirement because he had hoped to return to work, and that “[e]ven though there wa s a time limitation and I may not be able to say I was mentally incompetent, there was a lot of stress and depression on my part from not having a job and under one surgery after another.” He also submitted letters from two doctors, Dr. Robert Ramirez and Dr. Sanjay Mi sra, who described his medical treatments2008-3014 3 and commented on his mental state. Dr. Ramirez, who began treating Mr. Mendiola on September 30, 2003, stat ed that Mr. Mendiola’s medical hist ory reflected that he suffered from “severe depression and stress” after he wa s laid off in 1999 and 2000, and that “it is not unreasonable to infer that he had at least some degree of mental incompetence during that time.” Dr. Misra st ated that he had treated Mr. Mendi ola since 1999 for shoulder problems and cubital tunnel syndrome and that Mr. Mendiola was depressed about his job status and had taken muscle relaxants “w hich might alter his mentation.” An MSPB administrative j udge (AJ) conducted a heari ng on January 25, 2007, at which Mr. Mendiola’s wife testified that he was depressed and under stress and that he was unaware of the time limit for disability filing. A friend testified that Mr. Mendiola’s health had been deteriorating and that some consideration s hould be given to his lack of knowledge of the filing time requirements. Mr. Mendiola testified to the sur geries he had undergone and to his medical conditions, and re iterated his lack of awareness of the deadline for filing the application, particularly in view of his expec tation that he would return to work. On February 14, 2007 the AJ issued an initial decision, finding that Mr. Mendiola had not established by preponderant evidence that he was mentally incom petent at the time of his separation or within one year thereafter, and therefore affirming the OPM decision. Mr. Mendiola petitioned the full Board for review of the initial decis ion, but the Board denied his petition, rendering t he initial decision final on A ugust 9, 2007. He appealed to this court pursuant to 28 U.S.C. §1295(a)(9). DISCUSSION The scope of this court’s review of MSPB dec isions is limited. The decision must be affirmed unless it is (1) arbitr ary, capricious, an abuse of discr etion, or otherwise not in2008-3014 4 accordance with law; (2) obtained without procedur es required by law, rule, or regulation having been followed; or (3) unsupported by su bstantial evidence. 5 U.S.C. §7703(c); see, e.g. , Cheeseman v. OPM , 791 F.2d 138, 140 (Fed. Cir. 1986). Concerning the time for filing a disability retirement applicati on, 5 U.S.C. §8337 (b) provides: A claim may be allowed under this section only if the application is filed with the Office before the employ ee or Member is separat ed from the service or within 1 year thereafter. This time limitation may be waived by the Office for an employee or Member who at the date of separation from service or within 1 year thereafter is menta lly incompetent, if the app lication is filed with the Office within 1 year from the date of re storation of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier. MSPB determinations as to the timeliness of an application under this statute are reviewed under the above standard. McLaughlin v. OPM , 353 F.3d 1363, 1367-68 (Fed. Cir. 2004) (discussing further limitations on appellate revi ew of CSRS disability retirement cases imposed by 5 U.S.C. §8347 and Lindahl v. OPM , 470 U.S. 768, 791 (1985) but explaining that our review of timely filing is not affected by these limitations). The MSPB reviewed Mr. Mendiola’s evidenc e, and particularly mentioned Dr. Rodriguez’s statement that Mr. Mendiola suffered “severe depr ession” during the relevant time period and that “it is not unreasonable to infer that he had at least some degree of mental incompetence during that time.” T he MSPB found this statem ent insufficient both because it was not a conclusive opinion of incompetence and because Dr. Ramirez was not treating Mr. Mendiola during the year followi ng his separation. Similarly, the MSPB observed that Dr. Misra nev er stated the opinion or be lief that Mr. Mendiola was incompetent. The MSPB found more compelli ng Mr. Mendiola’s own statement that “I might not be able to say I was mentally in competent.” The MSPB further found the evidence relating to Mr. Mendiola’s physical condition, and his lack of knowledge of2008-3014 5 §8337(b), provided no support for his delay. Mr. Mendiola argues that the MSPB erred by failing to take into account his physical disability and his lack of knowledge of the one-y ear filing deadline for disability retirement claims. He does not argue that the MSPB applied the wrong legal standard; rather, he challenges the fairness of rigid application of the standard to his case, in light of his physical impairments and lack of knowledge. Mr. Mendiola also ar gues that the MSPB failed to consider that his doctors consider him totally disabled and have not “released” him from treatment. On this appeal Mr. Mendiola filed additional medical records, including a report from Dr. Anna Gonzaba who tested Mr. Mendi ola for carpal tunnel syndrome, and an additional letter from Dr. Ramirez stating hi s belief that Mr. M endiola has a permanent disability. No legal error has been shown in the MSPB’ s interpretation of 5 U.S.C. §8337(b), which provides that the one-year filing period for filing disab ility applications is extendable only if the applicant was or becam e mentally incompet ent during that period. As applied to late filing under §8337(b), “mentally incompet ent” means that the applicant had “no more than some minimal capacity to manage his own affairs.” French v. OPM , 810 F.2d 1118, 1119 (Fed. Cir. 1987). The applicant must est ablish mental incompetence by preponderant evidence. See 5 C.F.R. §1201.56(a). The MSPB did not err in holding that lack of knowledge of the la w, and the evidence of Mr. Mendiola’s medical conditions, did not establish “mental incompetence” for the purpose of excusing the one-year deadline imposed by 5 U.S.C. §8337(b). The new evidence Mr. Mendiola submitt ed with this appeal only goes to his physical condition, and provides no additional support for showing ment al incompetence during the relevant time2008-3014 6 period. This court does not have authorit y to depart from the statutory mandate. The MSPB conclusion that Mr. Mendiola did not meet the requirem ents of the statute is supported by substantial ev idence, and must be sustained. No costs.