Sampson Waller, Petitioner, v. Office of Personnel Management, Respondent, 16 F.3d 421 (Fed. Cir. 1993)

DECISION

Sampson Waller petitions for review of the June 28, 1993 final decision of the Merit Systems Protection Board, Docket No. AT831E930272-I-1, affirming the decision of the Office of Personnel Management (OPM) dismissing Waller's application for disability retirement as untimely filed under 5 U.S.C. § 8453 (1988). Because the Board did not err in concluding that Waller failed to show that his application was filed within the one-year statutory time limit or that he was entitled to waiver of the time limit, we affirm.

DISCUSSION

Effective October 11, 1988, Waller was separated from his position as a Clerk Typist with the U.S. Department of Agriculture (agency).¹  On September 27, 1990, Waller executed an application for disability retirement, which was received by the OPM on October 1, 1990. The OPM dismissed the application because it was not filed within one year of the date of separation as required by 5 U.S.C. § 8453. The OPM also determined that Waller had not met the only criterion for waiver of the time limit because the record failed to establish that Waller was mentally incompetent on the date of separation or within one year following separation. The decision to disallow Waller's application for disability retirement was affirmed by the OPM on reconsideration.

Waller appealed the OPM's decision to the Merit Systems Protection Board on February 9, 1993, claiming that he was mentally incompetent during the applicable filing period, October 11, 1988 to October 11, 1989, and was thus entitled to a waiver of the time limit to file for disability retirement under section 8453. The only evidence of record before the Board relating to Waller's alleged mental incompetency was a letter from a psychiatrist, E. Clifford Beal, M.D., dated September 16, 1988, stating that Waller was undergoing treatment for "major depression." The Board found that evidence insufficient to support a finding of mental incompetency in light of other evidence suggesting that Waller was capable of managing his affairs at the time of separation or within one year thereafter. The record showed that Waller had engaged, either pro se or through a legal representative, in numerous administrative and judicial proceedings concerning his termination of employment. The Board determined that such activity indicated that Waller was sufficiently competent to protect his rights and interests following his separation from the agency.² 

On appeal, Waller argues that the Board failed to consider other evidence establishing his mental incompetency during the period in question. In particular, Waller refers to a notice from the Social Security Administration (SSA), dated February 14, 1991, informing him of his eligibility to receive Supplemental Social Security Income under Title XVI of the Social Security Act. The Board was within its discretion to give that evidence little weight. Although the notice characterizes the supplemental income payments as "Individual--Disabled," it does not say that the SSA found Waller to be mentally incompetent nor does it identify any specific disability period.

Waller also alleges that the Administrative Judge (AJ) violated his due process rights by preventing him from obtaining medical evidence and by refusing to appoint legal counsel for him. We view these allegations to be without merit. First, the record reveals that Waller voluntarily rescinded his request for the issuance of a subpoena requiring Dr. Beal to produce his medical records and requested the cancellation of the oral hearing in which Dr. Beal would have testified. Second, we will not disturb the AJ's finding that Waller was not incompetent during the proceedings before the Board and thus not entitled to Board assistance in obtaining counsel. The AJ had sufficient opportunity to assess Waller's demeanor and to determine that the special obligations under French v. Office of Personnel Management, 810 F.2d 1118 (Fed. Cir. 1987) were not triggered.

Our review of the Board's decision is limited to determining whether its affirmance of the OPM's disallowance of Waller's application for disability retirement under section 8453 was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. § 7703(c) (1988). Under that standard, we must affirm the Board's decision.