NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

CESAR A. DELA ROSA,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

______________________ 

2013-3078

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF831E120107-I-1.

______________________ 

Decided: October 15, 2013

______________________ 

CESAR A. DELA ROSA, of La Union, Philippines, pro se. 

JOSHUA A. MANDLEBAUM, 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, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

REGINALD T. BLADES, JR., Assistant Director.

______________________ 

Before NEWMAN, PLAGER, and CHEN, Circuit Judges.
2 DELA ROSA v. OPM

PER CURIAM. 

Cesar Dela Rosa seeks review of a final decision of the 

Merit Systems Protection Board (the “Board”) finding that 

his application for disability retirement benefits was

untimely. Dela Rosa v. Office of Pers. Mgmt., 119 

M.S.P.R. 244 (2013). Because substantial evidence in the

record supports the Board’s decision, we affirm. 

I 

Mr. Dela Rosa retired from the United States Navy on

October 29, 1980, after serving for twenty years. He then

worked as a civilian for the Department of the Navy from

December 18, 1981 until November 28, 1988, when he 

resigned and separated from federal service. Id. at 2. 

In early 2009, Mr. Dela Rosa suffered a stroke. In 

September 2010, he filed an application for disability 

retirement related to his federal civilian service with the 

Office of Personnel Management (“OPM”). After attempts 

to contact him, OPM sent Mr. Dela Rosa a letter in May 

2011 to inform him that his request for disability retirement was untimely because “[t]he law requires that [such] 

applications . . . be filed with OPM either prior to separation from the service or within one year thereafter.” 

Resp’t’s App. 36 (citing 5 U.S.C. § 8453). OPM also noted 

that it could waive the statutory filing deadline if Mr. 

Dela Rosa could provide evidence to show that (1) he was 

unable to handle his personal affairs due to either physical or mental disease or injury (in other words, “mentally 

incompetent”) at the time of or within one year of his 

separation, and (2) he remained mentally incompetent at 

least until one year before he filed for disability retirement benefits. 

In response, Mr. Dela Rosa stated that he was unable 

to file for disability retirement between 1988 and 2010 

because he suffered from depression after a positive result 

from a Tuberculosis (“TB”) skin test that took place in 
DELA ROSA v. OPM 3

1984. Id. at 39. Mr. Dela Rosa further explained that he 

“cannot manage to [be] reemployed again due of [his] 

having ‘hypertension’ and the need to take a full rest in 

order to ease from [his] illness.” Id. at 40. His response 

also suggested he suffered from additional ailments as 

well. Id. 

Mr. Dela Rosa submitted medical records to support

his disability claim. Those records indicated that he was 

a “PPD converter”—someone who experienced a positive 

skin test for TB after testing negative previously. The 

documentation did not reveal any further testing for TB

or any definitive TB diagnosis. 

On June 21, 2011, OPM rejected Mr. Dela Rosa’s disability retirement application because it was “not filed 

within the time limit set by law.” Id. at 48. It found “no 

objective medical findings to establish incompetence or 

that [he] could not manage [his] affairs appropriately at 

the time of [his] separation on November 28, 1988, or 

within one year thereafter.” Id. 

Mr. Dela Rosa requested reconsideration and submitted additional medical records. OPM again found that the 

“evidence presented is not sufficient to show that [Mr. 

Dela Rosa was] mentally incompetent during the period 

November 28, 1988 to present, and [he] did not file an 

application for the disability retirement within the time 

limit provided by law.” Id. at 55.

Mr. Dela Rosa appealed OPM’s decision to the Board. 

The administrative judge (“AJ”) for the Board affirmed, 

finding that Mr. Dela Rosa’s disability application was 

untimely, since there was insufficient evidence to establish that he was incompetent. The AJ quoted from a 

recent medical report, dated August 16, 2011, which 

stated that Mr. Dela Rosa’s “cognitive skills have remained intact,” despite his 2009 debilitating stroke. 

Id. at 20. That same report also indicated that he tested 

positive for “mild depression,” but negative for depression. 
4 DELA ROSA v. OPM

Id. at 96-97. In the AJ’s view, the record did not support 

Mr. Dela Rosa’s position that “he was incompetent to 

manage his affairs between the date of separation and the 

date he filed his disability retirement application, September 16, 2010.” Id. at 21. 

The Board declined Mr. Dela Rosa’s petition to reconsider the AJ’s decision. It explained that there was no 

reason to disturb the AJ’s findings and reasoning. 

Id. at 55. 

Mr. Dela Rosa filed a timely petition to review the 

Board’s final decision. We have jurisdiction under 

28 U.S.C. § 1295(a)(9). 

II

Our review of Board decisions is limited. We must affirm the Board’s decision unless it was (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); McLaughlin v. Office of Pers. Mgmt., 

353 F.3d 1363, 1367-68 (Fed. Cir. 2004) (explaining that 

our standard of review is unaffected in cases concerning 

waiver of filing deadlines due to mental incompetence).

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. 

Mental 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). 
DELA ROSA v. OPM 5

III

There is no dispute that Mr. Dela Rosa’s application 

for retirement disability was filed more than twenty years 

after his separation from federal service. Thus, absent 

mental incompetency during the relevant time period, Mr. 

Dela Rosa’s disability claim may not be granted.

After reviewing the record, we see no error in the 

Board’s finding that there was insufficient evidence to 

establish that Mr. Dela Rosa was mentally incompetent 

during the statutorily relevant time period. Mr. Dela 

Rosa claims that he was mentally incompetent due to 

depression brought on by a combination of factors, including a positive TB skin test. However, despite that test 

result, Mr. Dela Rosa was never definitively diagnosed 

with TB. In addition, that test occurred in 1984—four 

years prior to his separation, and during that time frame 

he was cleared for multiple subsequent service assignments with the Department of the Navy. 

Mr. Dela Rosa also states that he has suffered from 

other maladies resulting from different causes, including 

exposure to asbestos and Agent Orange. Our thorough 

review of the record found no evidence, however, that any 

of these ailments rendered him mentally incompetent at 

any point between his November 28, 1988 separation date 

and the date that he filed for disability benefits twentytwo years later. The medical records he submitted do not

mention any mental impairment—only a reference to 

“mild depression,” after his 2009 stroke. Resp’t’s App. 20. 

Moreover, his medical provider found at that time—and 

the administrative judge specifically noted—that Mr. Dela 

Rosa’s “cognitive skills . . . remained intact.” Id. at 20. 

We therefore conclude that the Board’s finding that

Mr. Dela Rosa was not mentally incompetent during the 

relevant statutory time period is supported by substantial 

evidence. See Consolidated Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938) (explaining that substantial evidence is 
6 DELA ROSA v. OPM

that which a “reasonable mind might accept as adequate 

to support a conclusion”); Dowling v. Office of Pers. 

Mgmt., 393 F.3d 1260, 1262 (Fed. Cir. 2004) (same). 

Accordingly, the Board did not err by affirming OPM’s 

rejection of Mr. Dela Rosa’s retirement disability claim as 

untimely. The petition for review is denied. 

AFFIRMED

COSTS

No costs.