                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2008-3122

                                MARSHA L. PAYTON,

                                                            Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Marsha L. Payton, of Alexandria, Virginia, pro se.

       Christopher L. Krafchek, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Martin F. Hockey, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                       2008-3122

                                 MARSHA L. PAYTON,

                                                 Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                 Respondent.


    Petition for review of the Merit Systems Protection Board in DC831E070603-I-1.

                            ___________________________

                               DECIDED: July 10, 2008
                            ___________________________


Before MICHEL, Chief Judge, NEWMAN and BRYSON, Circuit Judges.

PER CURIAM.

                                       DECISION

       Marsha Payton petitions for review of the decision of the Merit System Protection

Board upholding the denial of her application for disability retirement. We affirm.

                                     BACKGROUND

       Ms. Payton was removed from her position with U.S. Customs and Border

Protection effective September 15, 2004, based on charges of reckless disregard for the

safety of others, insubordination, failure to follow instructions, unprofessional conduct,

and absence without leave. She appealed the removal action to the Merit Systems
Protection Board, which sustained the removal. Her petition for review by this court was

dismissed as untimely.

       On March 15, 2007, Ms. Payton filed an application for disability retirement with

the Office of Personnel Management (“OPM”).           OPM denied the application on the

ground that it was not filed either prior to her separation or within one year thereafter, as

required by 5 U.S.C. §§ 8337(b), 8453. OPM also found that there was no evidence

that Ms. Payton was eligible for a waiver of the time limit for filing an application for

disability retirement, which is available only to applicants who are mentally incompetent.

5 U.S.C. §§ 8337(b), 8453. The Merit Systems Protection Board upheld the agency’s

decision. Ms. Payton petitioned for a review by the full Board, which denied the petition.

This petition for review followed.

                                       DISCUSSION

       In this appeal, we are limited to reviewing whether the Board was correct in

affirming OPM’s denial of Ms. Payton’s application for disability retirement. Ms. Payton

appears to challenge the underlying removal action, but that issue was resolved against

her in her earlier appeal to the Board, and it is not properly before us in this appeal.

       By statute, an application for disability retirement must be filed before the

employee’s separation from service or within one year after separation.            5 U.S.C.

§§ 8337(b), 8453.     That requirement may be waived if the applicant is mentally

incompetent. Id. Ms. Payton was separated from service on September 15, 2004. She

apparently prepared her application for disability retirement in January 2007.             The

application was received by OPM in March 2007. Ms. Payton does not argue that she

applied for disability retirement within one year after the effective date of her removal in




2008-3122                                     2
September 2004.       Instead, she contends that she was actually not removed until

December 27, 2006, when she was allegedly denied the right to return to her job.

Contrary to Ms. Payton’s contention, there is ample evidence that, as the Board found,

her removal became effective on September 15, 2004. That evidence includes the

removal letter itself, which refers to the effective date of removal as September 15,

2004. More than two years elapsed between Ms. Payton’s separation from service in

2004 and the time she filed her application for disability retirement. She therefore did

not satisfy the one-year statutory time limit for applying for disability retirement.

       In order to waive the statutory time limit, OPM would have had to find that Ms.

Payton was mentally incompetent during the relevant time period leading up to her

application for retirement. 5 U.S.C. §§ 8337(b), 8453. Ms. Payton does not claim that

her delay in filing an application for disability retirement was attributable to mental

incompetence, nor does she contest the Board’s finding that she was mentally

competent during the year following her separation. In fact, Ms. Payton was found to

have no “evidence of depression or significant functional incapacity” during a medical

examination on November 17, 2006. Because Ms. Payton has not shown that she filed

her application for disability retirement within the one-year statutory period and because

there is no allegation or evidence that she is eligible for a waiver of the statutory time

limit due to mental incompetence, we must affirm the decision of the Board.




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