NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LISA BROOKS CARLSON,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

______________________ 

2013-3112

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC831E130148-I-1.

______________________ 

Decided: February 10, 2014

______________________ 

LISA BROOKS CARLSON, of Virginia Beach, Virginia, 

pro se. 

ERIC E. LAUFGRABEN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were STUART F. DELERY, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and MARTIN F.

HOCKEY, Assistant Director.

______________________ 
2 CARLSON v. OPM

Before RADER, Chief Judge, REYNA, and WALLACH, Circuit 

Judges.

PER CURIAM. 

In this federal employment case, Petitioner Lisa 

Brooks Carlson appeals the Merit Systems Protection 

Board’s (“Board”) final decision affirming the Office of 

Personnel Management’s (“OPM”) determination denying 

her application for disability retirement under the Civil 

Service Retirement System (“CSRS”) as untimely filed. 

Carlson v. Office of Pers. Mgmt., No. DC-831E-13-0148-I-1 

(M.S.P.B. Mar. 19, 2013). The Board also found the 

record did not allow waiver of the applicable filing deadline. Because substantial evidence supports the Board’s 

decision, this court affirms. 

BACKGROUND

Ms. Carlson was employed as a Window Clerk by the 

U.S. Postal Service (“agency”) beginning on February 25, 

1978. The record shows that on May 24, 1993, Ms. Carlson suffered an on-the-job injury. Despite this injury, 

Doctors informed Ms. Carlson that she was to remain at 

work full-time under the medical restriction of using an 

appropriate chair. On April 21, 1994, however, Ms. 

Carlson left work, and on April 28, 1994, she was informed by letter that she was considered absent without 

leave (“AWOL”). After a grievance Ms. Carlson filed with 

the American Postal Workers Union was resolved, the 

agency officially removed her from service on March 21, 

1995. 

In February 1996 and December 2002, the Office of 

Workers’ Compensation Programs (“OWCP”) denied Ms. 

Carlson’s “claims for lost wages stemming from her April 

21, 1994 condition. Specifically, the OWCP found that 

Ms. Carlson’s alleged disability was not causally related 

to her 1993 job-related injury.” Carlson v. Merit Sys. 

Protection Bd., 446 F. App’x 308, 309 (Fed. Cir. 2012). 
CARLSON v. OPM 3

Although the agency ultimately separated her for being 

AWOL (a for-cause reason), Ms. Carlson contended that 

she left work because of pain, and therefore, her absence 

was due to her compensable back injury, entitling her to 

restoration rights. On July 23, 2010, Ms. Carlson “appealed to the Board alleging that the agency denied her 

restoration rights following a compensable injury.” Id. 

The Board determined that it lacked jurisdiction to 

hear Ms. Carlson’s case because she failed to make a nonfrivolous allegation that her separation from the agency

was because of a compensable injury and not because she 

was AWOL. This court affirmed. Id.

On September 20, 2010, Ms. Carlson submitted an 

incomplete application for immediate retirement benefits 

under CSRS. OPM received her incomplete application on

or about October 7, 2010. Ms. Carlson answered “Unknown” to a question on the application asking about her 

date of separation from the agency. 

Ms. Carlson submitted a corrected retirement application claiming that she suffered from four herniated discs 

with stenosis and double major thoracolumbar scoliosis. 

Ms. Carlson “argued that she was unable to perform the 

duties of her Window Clerk job because she could not sit, 

stand, or walk for long periods and could not lift packages 

or trays.” Resp’t’s App. (“App.”) 25. Ms. Carlson alleged

“that she became disabled from her position in approximately April 1994.” Id.

By letter dated May 13, 2011, OPM notified Ms. 

Carlson that her application for disability retirement was 

untimely filed because she had filed it after the required 

time limit of one year after her separation. OPM notified 

her “that this requirement could only be waived if she was 

mentally incompetent at the time of separation or became 

incompetent within one year thereafter.” App. 26. The 

letter directed Ms. Carlson to provide evidence for a 

competency determination within thirty days. 
4 CARLSON v. OPM

Ms. Carlson did not produce any evidence, and in a 

letter dated June 23, 2011, OPM informed Ms. Carlson 

that her application was dismissed. Ms. Carlson timely 

requested reconsideration of OPM’s decision, and thereafter, in a letter dated May 7, 2012, OPM affirmed its 

earlier decision. Ms. Carlson appealed to the Board. The 

appeal however was dismissed at OPM’s request upon Ms. 

Carlson submitting evidence and medical documents 

pertaining to her mental competency. 

 After reviewing Ms. Carlson’s newly submitted evidence, on October 22, 2012, OPM issued a decision yet 

again rejecting Ms. Carlson’s application as untimely 

filed. OPM concluded that the newly submitted evidence 

did not prove that Ms. Carlson was mentally incompetent 

and lacked the capacity to file a timely application for 

disability retirement. Ms. Carlson appealed that decision 

to the Board.

On March 19, 2013, in an initial decision, the Board 

affirmed OPM’s decision. The Board found that OPM did 

not receive Ms. Carlson’s retirement application until 

October 7, 2010, which was over fifteen years after her 

separation from service on March 21, 1995, and well past 

the one-year filing deadline. The Board also determined 

that Ms. Carlson’s failed to show medical incompetency 

required to waive the one-year filing deadline. The initial 

decision became the Board’s final decision on April 23, 

2013. [A35] Ms. Carlson timely appealed to this court. 

We have jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

Our review of a decision of the Board is circumscribed 

by statute. We can set aside a Board 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). “A Board decision is 
CARLSON v. OPM 5

unsupported by substantial evidence when it lacks such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” McLaughlin v. Office 

of Pers. Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004) 

(internal quotation marks and citation omitted).

An application for disability retirement ordinarily 

must be filed with 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 

thereafter,” the applicant was “mentally incompetent,” 

and “the application is filed with [OPM] within 1 year 

from the date of restoration of . . . competency.” Id. 

“[M]ental incompetence is an inability to handle one’s 

personal affairs because of either physical or mental 

disease or injury.” Rapp v. Office of Pers. Mgmt., 483 F.3d 

1339, 1341 (Fed. Cir. 2007). This court has also recognized that waiver of the time limit established in 

§ 8337(b) “may lie against the agency when procedural 

error, in contravention of the agency’s established duties, 

results in derogation of the employee’s rights.” Johnston 

v. Office of Pers. Mgmt., 413 F.3d 1339, 1342 (Fed. Cir. 

2005) (remanding to determine whether petitioner received the requisite notice that his employment had been 

formally terminated and advising him of his options). 

Substantial evidence supports the Board’s decision 

denying Ms. Carlson’s retirement application as untimely. 

Ms. Carlson’s application was filed more than fifteen 

years after her separation from federal service. Thus, 

unless the record shows that Ms. Carlson was not given 

notice of her removal from federal service or that she was 

mentally incompetent during the relevant time period, 

Ms. Carlson’s application must be denied as untimely.

The Board found it more likely than not that Ms. 

Carlson was on notice that she was removed from federal 

service effective March 21, 1995. The Board noted that 
6 CARLSON v. OPM

“less than one month after [Ms. Carlson’s] separation 

date[, on April 11, 1995, she] completed an Application for 

Refund of Retirement Deductions wherein she stated that 

her Federal employment had ended on [March 21, 1995].” 

App. 12. The record reflects that OPM, on June 22, 1995, 

authorized a payment of $20,452.79 in response to Ms. 

Carlson’s application. Thus, the Board’s finding that Ms. 

Carlson was more likely than not on notice that her 

effective removal date was March 21, 1995 is supported 

by the record. 

The Board likewise determined that Ms. Carlson’s evidence was insufficient to show that she was mentally 

incompetent as of the date of her removal on March 21, 

1995, or during the one-year period thereafter. Ms. 

Carlson claims to have been suffering from chronic pain 

and severe depression as a result of her on-the-job-injury. 

To substantiate her contention, Ms. Carlson submitted 

letters from a doctor and a physical therapist, which 

stated that she is “totally disabled.” App. 13. In addition, 

Ms. Carlson testified that during the relevant time period 

she suffered from personal issues ranging from her husband leaving the family to the foreclosure of her home

causing further emotional stress. Ms. Carlson’s mother, 

Ms. Edith Harryman, and Ms. Carlson’s son, Mr. Ian 

Carlson, supported Ms. Carlson’s contention with written 

statements and testimonies of their own. 

Despite Ms. Carlson’s showing, the Board determined

that the evidence was lacking as of the date of her removal on March 21, 1995, or during the one-year period 

thereafter. The Board found the fact that Ms. Carlson 

was capable of filing an application for a refund of her 

retirement deductions one month after she was removed, 

and the fact that she filed an incomplete and a corrected 

retirement application and various legal documents

throughout the fifteen years actually showed Ms. Carlson’s competence in handling her personal affairs. Thus, 

the record supports the Board’s finding that Ms. Carlson 
CARLSON v. OPM 7

did not meet her burden of establishing mental incompetency. 

The Administrative Judge expressly recognized Ms. 

Carlson’s circumstances as both unfortunate and compelling. Upon review of the record, this court is also sympathetic to her plight. Ms. Carlson, her mother, and her son 

all provide poignant testimony. We, like the Board,

however, are bound to apply the law as written. The 

Board correctly applied the law and its decision was not 

arbitrary or capricious, and was supported by the record.

AFFIRMED

No costs.