NOTE: This disposition is nonprecedential 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MANUEL V. CUSTODIO, 

Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

Respondent. 

__________________________ 

2011-3121 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. SF0831090810-B-1. 

__________________________ 

Decided: November 14, 2011 

__________________________ 

MANUEL V. CUSTODIO, of San Jose, California, pro se. 

MICHELLE R. MILBERG, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

her on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and DEBORAH A.

BYNUM, Assistant Director. 

__________________________ 
CUSTODIO v. OPM 2

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

Judges. 

PER CURIAM. 

Manuel V. Custodio appeals the Merit Systems Protection Board’s dismissal of his claim for disability retirement benefits under the Civil Service Retirement 

System. Custodio v. Merit Sys. Prot. Bd., No. 

SF0831090810-B-1 (M.S.P.B. April 4, 2011) (“Final Order”). This court affirms. 

I. 

A. Factual Background 

Mr. Custodio served in active military service from 

November 18, 1966 to April 17, 1974. Following his 

military service, Mr. Custodio received a career conditional appointment as a janitor in the competitive service, 

where he worked from April 18, 1974 to April 20, 1979. 

In this position, he was under the Civil Service retirement 

plan. On April 20, 1979, Mr. Custodio requested a refund 

of his retirement deductions and received a lump sum. 

B. Procedural History 

On February 25, 2007, nearly twenty-six years following his departure from the competitive service, Mr. Custodio applied for disability retirement benefits under the 

Civil Service Retirement System. The Office of Personnel 

Management (“OPM”) denied his request. 

Mr. Custodio appealed the OPM’s decision to the 

Merit Systems Protection Board (“Board”). In support of 

his appeal, he submitted copies of a Social Security Administration Award Notice (“S.S. Award Notice”) and a 
3 CUSTODIO v. OPM

Veterans Administration Claim Award Notice (“VA Claim 

Notice”) as evidence of his disability. The Board held that 

Mr. Custodio’s application for disability retirement benefits was filed outside the requisite timeframe. Because 

the Board did not address the merits of the claim, it did 

not address the substance of the evidence that Mr. Custodio submitted in support of his claim. The Board noted 

that Mr. Custodio had not provided a basis for waiving 

the filing deadline, citing Marcee v. United States, 55 F.2d 

525, 526 (Ct. Cl. 1972) (disability retirement benefits can 

be waived only for an employee who is either mentally 

incompetent on leaving the federal service, or who becomes mentally incompetent within one year thereafter). 

As a result, the Board issued an Initial Decision that 

dismissed Mr. Custodio’s claim. 

Mr. Custodio timely filed a petition for review of the 

Initial Decision with the Board. To support his petition, 

Mr. Custodio submitted a Medical Abstract by Jose Rommel T. Soriano, M.D. dated February 16, 2007 (“Medical 

Abstract”). In a document entitled “Motion for Leave to 

Accept Supplemental Evidence,” Mr. Custodio requested 

that the Medical Abstract be accepted as evidence establishing mental incompetence under a diagnosis of severe 

depression. The Board denied the Motion and rejected 

the Medical Abstract on the basis that it was new evidence not previously provided to the OPM or to the administrative law judge. The Board found that Mr. 

Custodio failed to meet the standard set forth in Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) 

(new and material evidence must be shown to not have 

been previously available despite the party’s due dili-
CUSTODIO v. OPM 4

gence). The Board issued its Final Decision and dismissed Mr. Custodio’s petition.1 

On April 27, 2011, Mr. Custodio timely appealed the 

Board’s Final Decision to this court. 

This court has jurisdiction under 28 U.S.C. § 

1295(a)(9). 

II. 

Mr. Custodio’s informal brief raises three distinct issues: (1) that the Board erred in determining that Mr. 

Custodio did not qualify for a waiver to the filing deadline; (2) that the Board erred when it failed to consider 

the Medical Abstract and the S.S. Award as evidence of 

his disability; and (3) that this Court should appoint legal 

counsel for him on appeal. We address each of these 

arguments in turn. 

A. Standard of Review 

This court’s review of Board decisions is limited by 

statute. Decisions of the Board must be affirmed unless 

the decision 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). See also Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 624 (1995); 

Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140 

(Fed. Cir. 1986). 

 1 The Board also addressed an allegation of bias on 

the part of the administrative law judge. Mr. Custodio 

did not raise this issue on appeal. 
5 CUSTODIO v. OPM

B. Waiver of Deadline 

Mr. Custodio argues that the Board erred when it determined that he was not entitled to a waiver under 5 

U.S.C. § 8453. We agree with the Board that Mr. Custodio’s claim was filed out of time and that a waiver does 

not apply. 

We find that Mr. Custodio is not entitled to a waiver 

under 5 U.S.C. § 8453. The statute provides that the 

“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 mentally incompetent.” Id. In its Final Decision, the Board concluded that 

it could not consider the mental incompetency argument 

because it was raised for the first time in his petition for 

review to the Board, and because Mr. Custodio failed to 

demonstrate that the Medical Abstract was new and 

material evidence not previously available despite his due 

diligence. 5 C.F.R. § 1201.115(d)(1). We find that the 

Board’s decision regarding waiver was not arbitrary, 

capricious, or otherwise contrary to law. Anthony, 58 

F.3d at 625; see also, Mueller v. U.S. Postal Serv., 76 F.3d 

1198, 1201-02 (Fed. Cir. 1996). We affirm the Board’s 

determination that Mr. Custodio is not entitled to a 

waiver of the applicable time limits. 

C. Disability Retirement Benefits Claim 

Mr. Custodio argues that the Board erred when it 

failed to consider the S.S. Award Notice and the Medical 

Abstract as evidence of disability. As noted above, the 

Board did not reach the merits on whether Mr. Custodio 

was entitled to disability benefits given that his application was untimely filed. Since we agree that Mr. Custodio’s claims were untimely and that he was not entitled to 
CUSTODIO v. OPM 6

a waiver, we find no error in the Board’s refusal to consider the S.S. Award Notice and the Medical Abstract. 

D. Request for Appointed Counsel 

Mr. Custodio seeks to have counsel appointed to represent him in his appeal before this Court. In particular, 

Mr. Custodio argues that appointment of counsel is 

necessary in order to ensure that his rights are protected 

under the Uniformed Services and Reemployment Rights 

Act (“USERRA”) and the Veterans Employment Opportunity Act (“VEOA”). We conclude that appointment of 

counsel would not aid in this appeal. Accordingly, Mr. 

Custodio's request for appointment of counsel is denied. 

III. 

Accordingly, this court affirms the Board’s decision to 

dismiss Mr. Custodio’s claim for disability retirement 

benefits under the Civil Service Retirement System. 

AFFIRMED 

COSTS

Each party shall bear its own costs.