NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3253 JAMES O. VAUGHNS, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______ ____________________ DECIDED: May 4, 2006

______ ____________________ Before MICHEL, Chief Judge , NEWMAN and RADER, Circuit Judges

. MICHEL, Chief Judge

. James O. Vaughns was removed from em ployment at the Equal Employment Opportunity Commission (“EEOC”) office in Li ttle Rock, Arkansas, on April 13, 1990. On January 17, 2004, Mr. Vaughns, acting pro se , filed two appeals with the Merit Systems Protection Board (“MSPB” or “Board ”). The first appeal challenged his 1990 removal, and the second appeal was from a rec onsideration decision of the Office of Personnel Management (“OPM”) disallowing his application for disability retirement as untimely filed. The two appeals were no t consolidated. On May 21, 2004, an Administrative Judge (“AJ”) i ssued two initial decisions in these appeals. The first decision dismissed as untimely filed Mr. Vau ghns’ appeal challenging his 1990 removal.Docket No. DA-0432- 04-0261-I-1. The second decis ion affirmed the OPM disallowance of Mr. Vaughns’ app lication for disab ility retire ment as untimely filed. Docket No. DA831E-04-0262-I-1. Mr. Vaughns then obtained couns el, who fi led petitions for review with the full Board. Both initial decisions became final decisions of the Board when the full Board denied Mr. Vaughns ’ petitions for review. Mr. Vaughns, through the same counsel, then filed a Petition for Review wit h this court. The Petition for Review attached onl y the Final Order for Docket No. DA-831E04-0262-I-1, involving the denial of disabili ty retirement, and only a single doc keting fee accompanied the Petition. Acco rdingly, this court’s Notice of Docketing lists only Docket No. DA-831E-04-0262-I-1. Mr. Vaughns ’ counsel then s ubmitted a petitioner’s brief devoted solely t o the other MSPB d e cisio n , Docket No. DA-0432-0 4 -0261-I-1, regarding t he termination of his employment, and attached the firs t eight pages of that MSPB decision as an append ix to his brief. This court’s jurisdiction over MSPB appe als is limited by statute. “[A] petition to review a final order or final dec ision of the Board shall be filed in the United States Court of Appeals for the F ederal Cir c u it. Notwit hstanding any ot her provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final orde r or decision of the Board.” 5 U. S.C. § 7703(b). Accordingly, an appellant’s Petition for Review s e ts the par ameters of our jurisdiction. Bec ause Mr. Vaugh ns d i d not petit ion this c o urt for re vi ew of the MSPB dec ision re lating to his

05-3253 2removal, and becaus e the 60-day filing deadl ine has passed, it would be outside the bounds of our statutory authority to review the removal decision. 1 Because Mr. Vaughns ’ appellate brief is de v o ted solely to the removal decis i on, Mr. Vaughns’ couns el has failed to make any arguments related to the only MSPB decision we have authority to review. Normally , wher e an appellant does not file a brief challenging the judgm ent below, this court would dismi ss for failure to prosecute. See Fed. Cir. R. 31(d). We may, however, enterta in Mr. Vaughns’ petiti on for review at our discretion. In the absence of briefing on the di sab ility retirement clai m, we can review at most for plain error on t he record. We see none. A claim for disability retirement mu st be filed with OPM within one year of separation from employment, 5 U.S.C. § 8337(b), and OPM does not have discretion to waive the deadline, absent a s howing of mental incompetence. 2 Stevenson-Phillips v. OPM , 48 M.S.P.R. 527, 531 (1991). There are no factual dis p utes in this case, as the two key dates—separation date and OPM f iling date—are contained in official government documents and not disputed by Mr. Vaughns. On his application for
disab ility r e tirement, Mr. Vaughns in dicate d that his date of se par ation was April 1 3 , 1990; this separation date was confirmed by OPM documents submitted to the Board. Therefore, Mr. Vaughns was requ ired to file for disability retirement no later than April 13, 1991.

1 Indeed, in his supplemental brief addressing this issue, Vaughns concedes that he is collaterally estopped from challenging the removal action, as it was challenged unsuccessfully in Unit ed States District Court.

2 OPM may accept a late applicat ion if the applic ant was mentally incompetent “at the date of separation from service or within 1 ye ar thereafter” and filed an application within one year of the restorati on of compet ency. 5 U.S.C. § 8337(b).

05-3253 3Mr. Vaughns does not dispute that he applied to OPM for disabili ty retirement in 2003, as indicated by his dated cover lett er to OPM and the OPM date-stamp on the
disab ility r e tirement application. Instead, Mr. Vaughns argued to the Board that the filing dead line sh ould be eq uita bly tolled o n one of two groun d s . First, Mr. Vaughns claims that he was not subject to the one-year filing de adline for former empl oyees as o f his 1990 separation date because his “ e mp loyment relationship” with the EEOC continued pending resolution of his discrimination claim and subsequent lawsuit against the agency

. In the alt e rnative, Mr. Vaughns cl aims that because “ a lot of his illnesse s and conditions” were “latent and not manifested” until 1993, he was unable t o obtain a “final diag n o sis” of disability before the 1991 filing d e a d lin e. He produced n o evidenc e whatsoever that he was incomp etent durin g the one- year filin g peri od starting in April
1990. 3 Indeed, as the AJ noted, Mr. Va ughns’ own admission that he pursued a discrimination claim against the agency foll owing his separation rebuts any claim of mental inc o mpetence during the filing period. The AJ correctly rejected both equitable tollin g arguments as unsupported by case law. Because Mr. Vaughns does not dispute t hat he applied to OPM for disability retirement in 2003, twelve years after t he 1991 dead line, and does not dispute that he was mentally competent during the filing period, the decision of the Board is affirmed.

3 Mr. Vaughns had initially ar gued to OPM that he was mentally incompetent during t he filing period from April 1990 to April 1991, and submitted medical records to support his contention. Ho wever, his medical records indicate that he did not begin psyc hiatric treat ment until April 1 992 —well afte r the filing d eadline. He did not contest this finding on appeal to the Board.

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