                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARYSE AUGUSTIN,                                DOCKET NUMBER
                 Appellant,                          NY-3443-15-0124-I-1

                  v.

     FEDERAL DEPOSIT INSURANCE                       DATE: January 4, 2016
       CORPORATION,
                  Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Maryse Augustin, Flushing, New York, pro se.

           William S. Jones, Esquire, Arlington, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for lack of jurisdiction. For the reasons set forth below, we
     GRANT the petition for review, VACATE the initial decision, and REMAND the



     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     case to the New York Field Office for further adjudication in accordance with
     this Order.

                                       BACKGROUND
¶2           Effective March 28, 1997, the agency removed the appellant from her Bank
     Examiner position for failing to follow the directions of her immediate supervisor
     and conducting herself in an unprofessional manner. Initial Appeal File (IAF),
     Tab 1 at 21.     She filed an appeal of her removal with the Board, and the
     administrative judge issued an initial decision affirming the removal action.
     Augustin v. Federal Deposit Insurance Corporation, MSPB Docket No. NY-0752-
     97-0524-I-1, Initial Decision (0524-I-1 ID) (June 8, 1998). The appellant did not
     file a petition for review of that decision.
¶3           On October 4, 2010, the appellant wrote to the agency alleging, among
     other things, that it was placing “post-employment restrictions” on her.       IAF,
     Tab 1 at 7-8. The agency responded that it had not imposed any post-employment
     restrictions on the appellant and informed her that she could consider applying to
     the Office of Personnel Management (OPM) for disability retirement benefits. Id.
     at 6.   She subsequently wrote to OPM on or about November 18, 2010, and
     requested consideration for disability benefits “based upon [the] emotionally
     charged issues involved” and a waiver of the time limit for applying. Id. at 5. In
     a response letter dated December 8, 2010, OPM requested further identifying
     information from the appellant. Id. at 4.
¶4           The appellant filed this appeal on February 26, 2015, and requested a
     hearing.    Id. at 1-2, 26-36.   She indicated that she is appealing “employment
     restrictions” and seeking closure. Id. at 1, 29, 35. Specifically, she claimed that,
     since her removal in 1997, the agency has harassed her in various ways. Id. at 2,
     30, 35; IAF, Tab 4. She further alleged that, in 2011, the agency offered her a
     “disability package,” which she refused, apparently because of an alleged
     stipulation that she must work for 30 days at a post office. IAF, Tab 1 at 1, 30,
                                                                                      3

     35. She submitted evidence of a completed disability retirement application with
     the relevant portions completed by the agency between March and June 2011;
     however, it is unclear whether the application was ever submitted to OPM. Id.
     at 3-25. Finally, she expressed her preference for a cash settlement rather than
     obtaining disability retirement. Id. at 2, 30, 36; IAF, Tab 4.
¶5         The administrative judge issued a notice and order apprising the appellant
     of her jurisdictional burden of proof and directing her to respond on the
     jurisdictional issue.    IAF, Tab 3. The administrative judge also explained the
     disability retirement application process.    Id. In the appellant’s response, she
     gave several reasons why she believed that the Board has jurisdiction over her
     appeal. IAF, Tab 4. She subsequently reiterated her request for a hearing. IAF,
     Tab 5.
¶6         Without holding the requested hearing, the administrative judge dismissed
     the appeal based on her finding that the appellant failed to establish the Board’s
     jurisdiction.   IAF, Tab 8, Initial Decision (ID) at 1, 5.       She noted that the
     appellant did not provide proof that she submitted the disability retirement forms
     to OPM or that she received a final decision from OPM. The administrative judge
     also explained that the appellant’s initial appeal of the 1997 removal was fully
     adjudicated and was no longer before the Board. ID at 4. The administrative
     judge then found that there was no appealable action before the Board and that
     the appellant’s allegations of identity theft, schemes, and scams were beyond the
     Board’s purview.        ID at 4-5.   She further found that the Board lacked the
     authority to compel the agency to enter into a settlement agreement with the
     appellant. ID at 5.
¶7         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has not responded.
                                                                                     4

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶8        Although we agree with the administrative judge’s analysis in concluding
     that the appellant failed to establish the Board’s jurisdiction, we are remanding
     the case for further development of the record and adjudication consistent with
     this decision.     Specifically, we direct the administrative judge to apply the
     procedures        established   in    French     v.    Office    of     Personnel
     Management, 37 M.S.P.R. 496, 499 (1988) (finding that, in a disability retirement
     appeal, the Board has the authority to request pro bono representation for an
     appellant who asserts that he or she is incompetent).      We further direct the
     administrative judge to consider whether the agency had an obligation to file a
     disability retirement application on behalf of the appellant under 5 C.F.R.
     § 844.202(a). Finally, we direct the administrative judge to join OPM as a party
     to this case and determine whether OPM received the appellant’s disability
     retirement application and, if so, whether OPM made a decision on her
     application.     See Dixon v. U.S. Postal Service, 89 M.S.P.R. 148, 151, ¶¶ 4-5
     (2001) (finding that there must be a cooperative undertaking between the Board,
     the employing agency, and OPM to assure that an employee of likely mental
     incapacity would not suffer impairment of her rights to disability retirement
     benefits due to her incapacity, and so the administrative judge was authorized to
     join OPM as a party to the appeal, if he determined that such a step was
     appropriate or necessary).
     The record regarding the appellant’s mental health from her prior removal appeal
     supports a decision to apply French procedures.
¶9        It is “the obvious desire of Congress that employees who become disabled
     during honorable service as a result of mental incompetence not lose their
     entitlements because of the effects of their illness.” Hall v. Office of Personnel
     Management, 85 M.S.P.R. 371, ¶ 9 (2000). In Jones v. Department of Housing &
     Urban Development, 87 M.S.P.R. 269 (2000), the Board relied on the nature of
     the appellant’s pleadings before the Board and “indications of aberrant behavior”
                                                                                            5

      before the agency that might have contributed to her removal to find that French
      procedures should be applied, id., ¶¶ 5, 11.
¶10         Based on our extensive review, the same or similar factors present in Jones
      are present here.    We note, for instance, that the appellant made numerous
      assertions in the removal appeal that indicate that she was suffering from a mental
      or psychological condition. 0524-I-1 ID at 2. 2 The appellant’s presentation was
      such that the administrative judge raised the issue of whether a disabling
      condition was involved but noted that she could not order a medical examination
      in the context of that removal appeal. 0524-I-1 ID at 4. The administrative judge
      nevertheless properly considered the evidence of the appellant’s mental health in
      her analysis of the Douglas penalty factors. 0524-I-1 ID at 12. She specifically
      credited the testimony of the agency’s employee assistance counselor, who had a
      master’s degree in clinical psychology and was licensed to perform psychological
      examinations. 3 0524-I-1 ID at 4, 12, 24. The counselor met the appellant and
      they had numerous conversations. 0524-I-1 ID at 3. Relying on the counselor’s
      observations, the administrative judge concluded that the appellant needed
      professional help. 4 Id. The administrative judge also found that agency officials
      indicated that they had serious doubts about the appellant’s mental health issues
      before they removed her and that that the appellant’s situation was not simply one
      of “ordinary” misconduct. 0524-I-1 ID at 21-22. Additionally, according to the
      retirement paperwork the appellant completed in 2011, she only had two short

      2
        Page numbers referring to the initial decision in MSPB Docket No. NY-0752-97-0524-
      I-1 are based on the hard copy of the Westlaw version of the decision. 1998
      WL 1982078 (June 8, 1998).
      3
        The counselor also was a certified drug and alcohol therapist and an experienced
      employee assistance counselor with numerous Federal agencies and private companies.
      0524-I-1 ID at 3. She had served in community health centers, family service
      organizations, drug and alcohol treatment programs in a psychiatric hospital, and two
      general hospitals. Id.
      4
       Later, as the appellant’s situation at work unfolded, the counselor “became concerned
      and viewed the situation as more serious than she initially believed.” 0524-I-1 ID at 3.
                                                                                          6

      stints of work with the Department of Commerce after she was removed in 1997
      from the Bank Examiner position. IAF, Tab 1 at 13-14. There is no information
      in the record regarding the details of this brief employment or the reasons it
      did not continue.
¶11           Under the circumstances, we find that the application of French procedures
      is appropriate.     See French, 810 F.2d at 1119-20; see also Vanieken-Ryals v.
      Office of Personnel Management, 508 F.3d 1034, 1040-44 (Fed. Cir. 2007)
      (holding that objective medical evidence is not required to establish disability);
      Hall,     85 M.S.P.R.     371,   ¶¶ 9-10;    Woods v.      Office    of   Personnel
      Management, 59 M.S.P.R. 1, 3 (1993) (remanding with instructions to find
      representation for an appellant before determining whether he had been
      competent when his appeal was initially decided because the “fundamental
      unfairness described by the court in French . . . may exist”).
¶12           In sum, considering the nature of the appellant’s pleadings, the
      administrative judge’s findings in the removal appeal suggesting a mental health
      condition, and the other evidence (including medical evidence) mentioned above,
      we find that the administrative judge must apply French procedures to assist the
      appellant in her efforts at seeking disability retirement. See Harris v. Department
      of Veterans Affairs, 142 F.3d 1463, 1471 (Fed. Cir. 1998) (“[w]hen the Board is
      on notice of a person’s likely incapacity in connection with a disability retirement
      application, it must enforce the rules it established in French for such cases”).
      The administrative judge, on remand, must determine whether the agency was
      obligated to file for disability retirement on the appellant’s behalf.
¶13           Section 8451(a)(1)(A) of title 5 of the U.S. Code permits agencies to file
      disability retirement applications for their employees under the Federal
      Employees’ Retirement System (FERS). 5 The implementing regulation provides
      that an agency “must” file a disability retirement application for an employee who

      5
        The appellant’s Standard Form 50 indicates that she was an employee under FERS.
      IAF, Tab 1 at 21.
                                                                                            7

      has 18 months of Federal civilian service 6 when the following five conditions are
      met: (1) the agency has issued a decision to remove an employee; (2) the agency
      concludes, after its review of medical documentation, that the cause for
      unacceptable performance, attendance, or conduct is disease or injury; (3) the
      employee is institutionalized, or the agency concludes, based on a review of
      medical and other information, that the employee is incapable of making a
      decision to file an application for disability retirement; (4) the employee has no
      personal representative or guardian; and (5) the employee has no immediate
      family member who is willing to file an application on his or her behalf. 5 C.F.R.
      § 844.202(a).
¶14         We find that the record in this case raises the question of whether these
      regulatory requirements were met and thus triggered the agency’s obligation to
      file a disability retirement application. In so finding, we rely on the following
      factors: (1) the appellant’s pro se status; (2) the appellant’s correspondence with
      OPM on or about November 18, 2010, expressing a desire for disability benefits
      and a waiver of the time limit based on emotional issues; (3) her completed
      disability retirement application; and (4) evidence in the record of her appeals
      suggesting her possible mental incapacity.
¶15         As to evidence in the record of the appellant’s mental incapacity in her
      appeals, we note that the administrative judge found that the appellant’s mental
      health condition played a role in the misconduct that led to her removal and that
      agency management was not credible in denying that fact.           0524-I-1 ID at 12.
      The administrative judge also indicated that the appellant’s condition may have
      rendered her unable to recognize the need for treatment. Id. She found, too, that
      the agency managers knew of the counselor’s opinion that the appellant needed

      6
        We note without finding that the appellant appears to have met the 18-month service
      requirement and was employed under FERS when she was removed for reasons the
      administrative judge found were related to her condition. IAF, Tab 1 at 13, 21; 0524-
      I-1 ID at 12. See generally Angel v. Office of Personnel Management, 122 M.S.P.R.
      424, ¶ 5 (2015) (stating the current criteria for a FERS disability retirement annuity).
                                                                                           8

      professional help, based on the counselor’s observation of the appellant. Id. The
      administrative judge determined as well that, even absent the counselor’s
      assessment, certain agency officials were simultaneously questioning the
      appellant’s mental state and believed that her removal was not simply a matter of
      “ordinary” misconduct. Id.
¶16         This evidence and the administrative judge’s findings seem to raise a
      genuine question as to whether the agency was obligated to file a disability
      retirement on the appellant’s behalf. See Harris, 142 F.3d at 1471-72 (remanding
      for the Board to determine whether the agency had neglected its duty to file for
      disability retirement on the appellant’s behalf because there was substantial
      reason   to   suspect   that   the   regulatory   conditions   had   been   satisfied);
      Jones, 87 M.S.P.R. 269, ¶ 12 (directing the administrative judge to develop the
      record on whether the agency was obligated to apply for disability retirement on
      the appellant’s behalf); see also Lizut v. Department of the Army, 717 F.2d 1391,
      1393-95 (Fed. Cir. 1983) (reasoning that, because it is OPM’s responsibility to
      determine entitlement to disability retirement benefits, the evidence need not
      uncontrovertibly establish a disabling condition before the employing agency is
      obligated to apply for the appellant).
¶17         Further, although it is true that the appellant’s failure to seek treatment was
      a factor in the administrative judge’s decision to uphold her removal, 0524-I-1 ID
      at 12, this would not necessarily bar her from obtaining disability retirement
      benefits, given that an appellant’s refusal to seek treatment may be a symptom of
      her psychiatric illness, Frontan v. Office of Personnel Management, 90 M.S.P.R.
      427, ¶ 12 (2001) (“[T]he very mental condition causing disability may be what
      leads an employee to refuse a psychiatric examination.”) (citing Lizut, 717 F.2d
      at 1394).
¶18         Similarly, even though the appellant claimed on her disability retirement
      application that she was not disabled, this claim is counterintuitive and actually
      seems to support the proposition that she requires assistance in pursuing a
                                                                                             9

      disability retirement appeal.      IAF, Tab 1 at 17; see, e.g., Harris, 142 F.3d
      at 1470-71 (finding that the appellant’s refusal to explain why he was disabled on
      his disability retirement application and the fact that he did not consider himself
      disabled, along with other evidence, strongly suggested that he was incapable of
      making a decision to file and pursue a disability retirement application);
      Hall, 85 M.S.P.R. 371, ¶ 21 (contemplating that an appellant’s failure to assert
      incompetence could itself be a manifestation of that incompetence).
¶19         On remand, the administrative judge must develop the record further to
      resolve these questions. These issues were not explored below because the case
      was dismissed for lack of jurisdiction.
      The administrative judge, on remand, must join OPM as a party to determine a
      jurisdictional issue in this appeal.
¶20         Finally, there remains an issue of whether the Board has jurisdiction over
      this appeal based on OPM’s failure to act on the appellant’s written request for
      retirement benefits in 2010. It is undisputed that the appellant wrote a letter to
      OPM on November 18, 2010, requesting disability retirement benefits and a
      waiver of the application time limit due to the “emotionally charged issues
      involved.” 7   IAF, Tab 1 at 5. The existing record shows that OPM never treated
      this letter as an application for benefits, and OPM did not render a decision of
      any kind. Rather, OPM treated this letter as an unclear request for retirement
      records. 8 Id. at 4. OPM’s reply neither acknowledged the appellant’s request for




      7
        The appellant seems to have done so on the suggestion of the agency’s Senior Advisor
      to the Human Resources Director, who advised her that she should consider applying
      for disability benefits and could seek a waiver of the time limit “based upon emotional
      or mental stress that [she] may have suffered during and after [her] employment with
      the FDIC.” IAF, Tab 1 at 6.
      8
        OPM’s handling of the appellant’s brief letter, which could reasonably be interpreted
      as a request for disability retirement benefits, may be explained by the fact that it was
      addressed to OPM’s records center in Boyers, Pennsylvania. IAF, Tab 1 at 5.
                                                                                         10

      benefits nor told her how to direct her request for disability retirement. 9       Id.
      Based on these facts, it is possible that OPM’s handling of the appellant’s letter
      may be inconsistent with its own policies.           See 5 C.F.R. § 844.201(a)(3)
      (suggesting that OPM will not reject a disability retirement application because it
      is submitted by letter or other form not prescribed by OPM, but, rather, will
      postpone adjudication of the request until the proper forms are submitted).
¶21        We find that OPM’s actions under the circumstances unwittingly failed to
      address the appellant’s 2010 disability retirement request, especially in light of
      the indications, mentioned above, that she is suffering from a mental health
      illness. We also find that, in circumstances somewhat similar to those presented
      here, the U.S. Court of Appeals for the Federal Circuit in Byrum v. Office of
      Personnel Management, 618 F.3d 1323 (Fed. Cir. 2010), remanded the case and
      noted that “the Board has jurisdiction to consider a matter not addressed by OPM
      if the Board’s failure to do so ‘could effectively prevent an appellant from
      obtaining an adjudication of his claim.’” Id. at 1332-33 (quoting McLaughlin v.
      Office of Personnel Management, 62 M.S.P.R. 536, 546-47 (1994), aff’d, 47 F.3d
      1181 (Fed. Cir. 1995)). The court stated that remand was necessary to ensure that
      the appellant “was given a fair opportunity to make her case, and have it decided
      according to law.” Byrum, 618 F.3d at 1332-33.
¶22        Finally, we point out that, although the appellant’s disability retirement
      application is likely untimely, OPM has the authority to grant a waiver of the time
      limit based on mental incompetence under 5 U.S.C. § 8453, as the appellant in
      French tried to argue. See French, 810 F.2d at 1118-20. In French, the Federal
      Circuit held that it was an abuse of discretion to dismiss as untimely a mentally

      9
        The record reflects that the appellant seems confused about the application process,
      the benefits potentially available to her, and the roles of OPM and her employing
      agency. As stated above, she seems to be under the misimpression that she was offered
      a disability package by her former employing agency as a settlement, which she
      declined because she mistakenly believed she would be required to work at her local
      post office for 30 days. IAF, Tab 1 at 1.
                                                                                          11

      incompetent individual’s pro se claim for disability retirement benefits.           Id.
      at 1119.   The administrative judge, on remand, should explore and then make
      findings on the timeliness issue in light of the considerations discussed herein.

                                            ORDER
¶23        Accordingly, we remand this case to the New York Field Office for further
      adjudication in accordance with the instructions contained in this Remand Order.




      FOR THE BOARD:                            ______________________________
                                                William D. Spencer
                                                Clerk of the Board
      Washington, D.C.
