NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3127

TONYA M. ANDERSON, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent. Tonya M. Anderson , of Cleveland, Ohio, pro se. Christopher J. Carney , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Just ice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, and Kathryn A. Bleecker , Assistant Director. Of counsel was Paul St. Hillaire , Office of Personnel Management, of Washington, DC. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3127

TONYA M. ANDERSON, Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

DECIDED: June 11, 2007

Before LOURIE, SCHALL, and PROST Circuit Judges

. PER CURIAM. DECISION Tonya M. Anderson petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that sustained the action of the Office of Personnel Management (“OPM”), denying her application for disability retirement as untimely. Anderson v. Office of Pers. Mgmt. , No. CH-844E-06-0550-I-1 (M.S.P.B. Jan. 24, 2007). We affirm

.DISCUSSION
I. Ms. Anderson was removed from her pos ition with the United States Postal Service (“USPS”) on February 13, 2000. On October 1, 2005, she filed an application for disability retirement under the Federal Em ployees Retirement S ystem (“FERS”) with OPM. On March 27, 2006, OPM notified Ms. A nderson that her disabi lity application did not meet the one-year time f iling deadline, statutorily set forth at 5 U.S.C. § 8453. 1 The letter additionally notified Ms. Anderson that “this time limit may only be waived if a former employee was mentally incompetent at the time of separation or became incompetent within one year ther eafter.” OPM, in the letter, further requested that Ms. Anderson submit evidence in order for OPM to make a competency determination regarding waiver of her untimely filing. Ms. Anderson responded to OPM’s letter on April 9, 2006, stating that she did not need a mental evaluation and that her application was late because she was waiting to hear from her attorney regarding a worker ’s compensation claim and from the USPS about other employment opportunities. On April 19, 2006, OPM dismissed her application for disability retirement benefits as untimely. OPM explained that the medical evidence in Ms. Anderson’s file, whic h related to an on-the-job ankle injury, did

1 Section 8453 provides: A claim may be allowed . . . only if app lication is filed with [OPM] before the employee or Member is separated from t he service or within 1 year thereafter. This time limitation may be waived by [OP M] for an employee or Member who, at the date of separation from service or wi thin 1 year thereafter, is mentally incompetent if the applicat ion is filed with [OPM] withi n 1 year from the date of restoration of the employee or Member to competency or the appointment of a fiduciary, whichever is earlier.

2007-3127 2not establish that she was ph ysically or mentally incom petent at the time of her February 13, 2000 separation from physical serv ice or within one year thereafter. On May 30, 2006, Ms. Anderson appealed the OPM decision to the Board. In an initial decision dated Sept ember 14, 2006, the administr ative judge (“AJ”) affirmed OPM’s determination that Ms. Anderson’s disability retirem ent application was untimely filed and that Ms. Anderson wa s not eligible for a waiver of the one-year time limit because she had failed to prove that she was incompetent. Anderson v. Office of Pers. Mgmt. , No. CH-844E-06-0550-I-1 (M.S.P.B. Sept. 14, 2006). The AJ noted that Ms. Anderson insisted to OPM that she did not need a mental evaluation and that she did not raise any issue that she was mentally in competent in her appeal to the Board. On January 24, 2007, the AJ’s initial decision be came the final decision of the Board when the Board denied Ms. Anderson’s petition for re view. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s deci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evid ence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). As noted, pursuant to 5 U.S.C. § 8453 , an application for FERS disability retirement must be filed with OPM before t he employee is separated from service or within one year thereafter. This statutory one-year fili ng deadline “may be waived by

2007-3127 3[OPM] for an employee or Member who, at t he date of separation from service or within 1 year thereafter, is mentally incompetent if the applicati on is filed with [OPM] within 1 year from the date of restor ation of the employee or Me mber to competency or the appointment of a fiduciary, whichev er is earlier.” 5 U.S.C. § 8453. On appeal, Ms. Anderson does not argue that she was mentally incapacitated during the applicable peri od. Instead, she argues that s he has a physical disability and therefore needs retirement mo re than she needs employment. She additionally points to the assessment results from her applic ation to the USPS Associate Supervisor Program and a doctor’s statement r egarding her ankle injury. Based on our review of the record, we hol d that the Board's decision that Ms. Anderson was not entitled to a waiver of the one-year time limit is supported by substantial evidence. Ms. Anderson made no a ttempt in her appeal to the Board or in her appeal to this court to demonstrate t hat was mentally in capacitated during the applicable period. Inst ead, as the AJ noted in his Se ptember 14, 2006 initial decision, Ms. Anderson asserted to OPM that she did not need a mental eval uation. We thus agree with the Board’s decision that Ms. Ander son’s disability reti rement application was untimely filed and that because Ms. Anderson failed to prove that she was incompetent, she was not eligible for a waiver of the statutor y one-year filing deadline. For the foregoing reasons, the decis ion of the Board sustaining OPM's reconsideration decision rejecting Ms. Anders on's application for disability retirement benefits as untimely filed is affirmed. No costs.

2007-3127 4