                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ANDREW FULLMAN,                                 DOCKET NUMBER
                 Appellant,                          PH-844E-14-0864-I-2

                  v.

     OFFICE OF PERSONNEL                             DATE: August 22, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Andrew Fullman, Philadelphia, Pennsylvania, pro se.

           Delores A. Saunders, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the final decision of the Office of Personnel Management (OPM)
     dismissing his application for disability retirement as untimely filed. Generally,
     we grant petitions such as this one only when:          the initial decision contains


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative judge’s rulings during either the course of
     the appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.             See
     title 5     of   the   Code   of   Federal    Regulations,    section 1201.115   (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.           Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                           BACKGROUND
¶2             The appellant was employed by the U.S. Postal Service from 1987 to 1992,
     and again from May 3 to May 29, 2003, when he was terminated during his
     probationary period. Initial Appeal File (IAF), Tab 6 at 197-203. 2 On or about
     March 7, 2011, he filed an application for disability retirement under the Federal
     Employees’ Retirement System (FERS), asserting that he was unable to perform
     the duties of his position due to musculoskeletal injuries, including central L4-5
     disc bulge with annular fissure and mild bilateral foraminal stenosis. Id. at 92-97.
     By letter dated April 29, 2014, OPM informed the appellant that his application
     was dismissed as untimely filed.             Id. at 88-89.   The letter explained that he
     did not file his application within 1 year of his separation, as required by statute,
     and that the deadline could not be waived because there was no evidence that he



     2
       References to the record at “IAF” will be to the initial appeal file (I-1) as opposed to
     the Refiled Appeal File (RAF).
                                                                                       3

     was mentally incompetent at the time of his termination or became mentally
     incompetent during the following year. Id. at 88-89.
¶3           On May 19, 2014, the appellant requested reconsideration and indicated that
     he intended to submit additional evidence within 30 days. Id. at 7-8. On May 31,
     2014, he submitted a copy of the “mental health file,” which his attorney had kept
     in connection with his social security claim. Id. at 9-87. In the attached letter, 3
     he asserted that he had been diagnosed with anxiety, panic attacks, major
     depressive disorder, and posttraumatic stress disorder, and had been receiving
     treatment for these conditions since 2003.             Id. at 9.    In subsequent
     correspondence, dated June 26, 2014, he also provided sworn statements from his
     brother and a long-time friend, J.W., both of whom averred that they had assisted
     the appellant with his personal affairs during the relevant period because he was
     physically and mentally incompetent. IAF, Tab 14, Exhibit C.
¶4           On July 10, 2014, OPM issued a final decision reaffirming the dismissal of
     the appellant’s application. IAF, Tab 6 at 4-6. In its decision, OPM noted that
     the appellant had filed applications for other Federal benefits during the 1-year
     period following his termination and had done so without the aid of a
     court-appointed guardian or custodian or any other apparent assistance. Id. OPM
     further stated, albeit incorrectly, that the appellant had not submitted additional
     evidence in support of his claim that he was mentally incompetent during the
     1-year period. Id. On August 20, 2014, the appellant filed an appeal with the
     Board. IAF, Tab 1.
¶5           During the proceedings below, the appellant requested and received two
     30-day suspensions of case processing to provide him with additional time in
     which to obtain supporting medical documentation and find a representative.
     IAF, Tabs 8-11. Subsequently, in a letter dated February 13, 2015, the appellant
     asked the administrative judge to provide clarification as to what additional

     3
         The letter is incorrectly dated May 31, 2013.
                                                                                       4

     medical documentation would be needed to support his case.            IAF, Tab 16.
     During a March 5, 2015 conference call, the administrative judge addressed the
     appellant’s February 13, 2015 letter and found that OPM’s decisions were
     sufficient to place the appellant on notice of the issue under appeal, i.e., whether
     he was mentally incompetent when he was separated from the Postal Service or
     became incompetent within 1 year after that date, and if so, whether he filed his
     disability retirement application within 1 year of the date he regained
     competence.     IAF, Tab 20; see 5 U.S.C. § 8453.     However, the administrative
     judge again explained the issue under appeal and agreed to provide the appellant
     “one final opportunity” to obtain additional evidence from his physicians. IAF,
     Tab 20. The administrative judge explained in detail what information should be
     included in that evidence. Id. The administrative judge agreed to dismiss the
     appeal without prejudice, to be automatically refiled in 36 days, and the appeal
     was dismissed and refiled accordingly. Id.; see IAF, Tab 21; Refiled Appeal File
     (RAF), Tab 1.
¶6         Following a hearing, the administrative judge issued an initial decision,
     dated August 19, 2015, affirming OPM’s final decision.        RAF, Tab 10, Initial
     Decision (ID). Based on his de novo review of the record, he found that the
     medical evidence showed that the appellant had suffered from several diagnosed
     mental conditions over an extended period of time, but that there was no medical
     evidence showing that he was mentally incompetent during the relevant period
     from May 29, 2003, to May 28, 2004. Id. In addition to the medical evidence,
     the administrative judge considered the testimony of the appellant, the testimony
     and sworn statement of J.W., and the sworn statement of the appellant’s brother.
     Id.   However, he found that their statements were either not credible or not
     sufficiently detailed to establish that the appellant only had minimal capacity to
     manage his affairs during the 1-year period following his separation. Id.
¶7         Following the issuance of the initial decision, the appellant requested a
     20-day extension of the deadline for filing his petition for review, indicating that
                                                                                      5

     he needed additional time to request a subpoena for medical health records.
     Petition for Review (PFR) File, Tab 1.       The Clerk of the Board granted his
     request.   PFR File, Tab 2.     On October 13, 2015, the appellant timely filed a
     petition for review and an amendment thereto and requested an additional 30-day
     extension in which to submit supporting medical evidence. PFR File, Tabs 5-6.
     In the October 22, 2015 acknowledgement letter, the Clerk of the Board granted
     the appellant’s request to file a supplement to his petition for review and
     indicated that the supplemental pleading must be filed on or before November 12,
     2015. PFR File, Tab 7. On November 13, 2015, the day after the deadline, the
     appellant filed a “Supplemental Petition for Review,” and on November 17, 2015,
     he filed a “Request to File Supplemental Petition for Review out of Time.” PFR
     File, Tabs 8-9. On December 4, 2015, the agency filed a timely response to the
     appellant’s petition for review. PFR File, Tab 11.
¶8        Subsequently, on December 7, 2015, the appellant submitted a request for
     the Board to place his case on hold so that he could obtain a narrative report from
     his psychiatrist, with whom he had scheduled an appointment on December 16,
     2015. PFR File, Tab 12. On December 9, 2015, the appellant filed a motion to
     submit a pleading after the closing of the record, again citing delays in obtaining
     the narrative medical report.     PFR File, Tab 13.   On December 29, 2015, the
     appellant filed a reply to the agency’s response to his petition for review. PFR
     File, Tab 15. On March 18, 2016, the appellant filed a second motion to submit
     additional medical evidence after the record closed, which also appears to contain
     the new evidence that he referenced in his motion. PFR File, Tab 16.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶9        On review, the appellant first alleges bias and discrimination on the part of
     the administrative judge. PFR File, Tab 5 at 1. In making a claim of bias or
     prejudice against an administrative judge, a party must overcome the presumption
     of honesty and integrity that accompanies administrative adjudicators. Oliver v.
                                                                                        6

      Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative
      judge’s conduct during the course of a Board proceeding warrants a new
      adjudication only if the administrative judge’s comments or actions evidence “a
      deep-seated favoritism or antagonism that would make fair judgment impossible.”
      Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
      (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).           We find the
      appellant’s allegations of bias do not meet this standard. He contends that the
      administrative judge took advantage of his psychological condition by issuing
      confusing and misleading instructions and that he stated over the telephone that
      he did not want the case remanded because of the appellant’s mental illness. PFR
      File, Tab 5 at 1.    However, we find no indication in the record that the
      administrative judge gave the appellant confusing or misleading instructions,
      deliberately or otherwise.     Furthermore, the appellant has not shown that the
      remarks he attributed to the administrative judge were anything other than the
      administrative judge’s honest appraisal of his case. See Galloway v. Department
      of Agriculture, 110 M.S.P.R. 311, ¶ 13 (2008).
¶10         The appellant also asserts that the administrative judge improperly denied
      his request for subpoenas and then incorrectly stated that he had withdrawn his
      request. PFR File, Tab 5. However, the appellant stated at the hearing that he
      had no objection to the summary of the June 30, 2015 prehearing conference, in
      which the administrative judge stated that the appellant had withdrawn his request
      for subpoenas and was responsible for ensuring that his witnesses were available
      to testify. RAF, Tab 8; Hearing CD. The appellant was specifically advised that
      any objection to the summary must be made prior to the swearing in of the first
      witness at the hearing or the objection would be deemed waived. RAF, Tab 8.
      The   appellant   thus   has   waived   any   objection   concerning   his   request
      for subpoenas.
¶11         The appellant further contends that the administrative judge failed to
      properly consider and weigh medical evidence establishing that his mental
                                                                                            7

      conditions began in 2001. PFR File, Tab 5 at 1. Specifically, the appellant points
      to an April 14, 2015 letter from a practitioner at a current place of treatment,
      which summarizes a Level of Care Assessment completed in the fall of 2011.
      PFR File, Tab 6, Exhibit A. The original assessment, which was prepared by the
      same practitioner, is also in the record. IAF, Tab 6 at 64-73. The assessment
      indicates that the appellant was suffering from psychological symptoms including
      depression, anxiety, disorganized thought processes, and panic attacks. Id. at 72.
      The assessment further states that these symptoms “were first experienced about
      10 years ago,” but had fluctuated in intensity over the years, and increased in
      severity in the preceding 2 months. Id. The assessment further notes that the
      appellant had first sought treatment in 2004. Id.
¶12        We find that, contrary to the appellant’s assertions, the administrative judge
      gave due consideration to the evidence in question. In the initial decision, the
      administrative judge acknowledged that, in the original assessment, the appellant
      had reported experiencing symptoms as early as 2001.            ID at 10.    He further
      found that, even if the appellant did not begin treatment until late 2004, it was
      more likely than not that the appellant was already experiencing some of the
      symptoms that caused him to seek treatment during the 1-year following his
      separation from the Postal Service.       Id. at 9-10 (citing Bruce v. Office of
      Personnel Management, 119 M.S.P.R. 617, ¶ 12 (2013)).
¶13        However, we find that the administrative judge correctly found that the
      record   contains   no   medical   evidence   to    establish   that   the   appellant’s
      psychological symptoms, which admittedly waxed and waned over the years,
      rendered him mentally incompetent during the 1-year period following his
      separation from the Postal Service.     The appellant has provided evidence on
      review showing that he was prescribed Xanax on March 20, 2004, before the end
      of that 1-year period. PFR File, Tab 5, Exhibit E. However, the fact that the
      appellant was prescribed Xanax does not establish that he was mentally
      incompetent, and we note that he has taken Xanax in the course of these
                                                                                        8

      proceedings.    IAF, Tab 14, Response to Interrogatory #5.        We also are not
      persuaded by his contention that we should find the medical evidence sufficient to
      establish his mental incompetence during the filing period because an OPM
      specialist allegedly called him to ask whether he was receiving social security
      disability benefits. PFR File, Tab 5 at 1.
¶14        The appellant also objects that OPM failed to consider the notarized
      statements by his brother and J.W., which he had submitted to OPM prior to the
      issuance of its reconsideration decision. He argues that the administrative judge
      should have therefore granted his request to subpoena the OPM specialist to
      whom he mailed the statements. PFR File, Tab 5 at 1-2. However, as discussed
      above, the appellant has waived any objections concerning his withdrawn
      subpoena requests. In any event, it is irrelevant whether OPM considered those
      documents, because the administrative judge did consider them, and the Board’s
      review of an OPM decision is de novo.         See Licausi v. Office of Personnel
      Management, 350 F.3d 1359, 1363-65 (Fed. Cir. 2003).
¶15        The appellant further asserts that his former employer did not inform him of
      his right to file a disability retirement claim until December 15, 2010. PFR File,
      Tab 5 at 2. Where an employee is removed based on reasons apparently caused
      by a medical condition, FERS regulations require that the employing agency
      inform the employee of his possible eligibility for disability retirement and the
      time limit for filing an application.    5 C.F.R. § 844.202(b)(1).   However, the
      record reflects that the appellant was terminated for failing to disclose on his
      application that he previously had been removed for alleged misconduct. IAF,
      Tab 6 at 92.      Moreover, even if the agency were required by 5 C.F.R.
      § 844.202(b)(1) to inform the appellant of his potential disability retirement
      option, its failure to do so would not provide a basis to waive the statutory 1-year
      filing deadline under 5 U.S.C. § 8453. King v. Office of Personnel Management,
      112 M.S.P.R. 522, ¶ 14 (2009).
                                                                                        9

¶16        The appellant also argues that that administrative judge failed to consider
      evidence that a Federal lawsuit he had filed during the 1-year period following his
      termination was “put on hold in the suspense file for years due to [his]
      psychological issues and serious side effects from his psychotropic medications.”
      PFR File, Tab 5 at 2. In support of his claim, the appellant supplies a copy of an
      order from the U.S. District Court for the Eastern District of Pennsylvania,
      indicating that the court was placing his civil action against the Postal Service in
      the Civil Suspense file because he was undergoing medical treatment.            Id.,
      Exhibit B. However, the court order is dated August 24, 2005, well over a year
      after the 1-year period expired, and it does not specify the nature of the
      appellant’s medical treatment. Id. Hence, to the extent the administrative judge
      may have failed to consider that evidence, we find that the omission was of no
      consequence.    See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
      282 (1984).
¶17        Finally, we find no merit to the appellant’s suggestion that the
      administrative judge improperly closed the record while he was still awaiting
      additional medical evidence. The decisions by OPM were sufficient to place the
      appellant on notice of the issue on appeal, and the administrative judge provided
      the appellant multiple extensions of time in which to acquire supporting medical
      evidence, including two 30-day suspensions and a dismissal without prejudice to
      refiling, which delayed processing of the case by an additional 36 days. IAF,
      Tabs 8-11, 20-21. To the extent the appellant may have been in doubt as to the
      precise kind of medical evidence needed to support his claim, the administrative
      judge explained in clear detail what information was required in his written
      summary of the March 5, 2015 conference call. IAF, Tab 20. The administrative
      judge clearly informed the appellant that this would be his final opportunity to
      provide supporting medical evidence, id., and the written record remained open
      until June 25, 2015, RAF, Tab 5.         While we acknowledge that obtaining
      decade-old medical documentation may be time-consuming, we nonetheless find
                                                                                       10

      that the appellant was provided ample opportunity to obtain additional supporting
      evidence before the record closed.
¶18        Regarding the appellant’s additional filings, we note that he filed his
      supplement to his petition for review 1 day after the extended deadline of
      November 12, 2015, which was clearly set forth in the acknowledgment letter.
      PFR File, Tabs 7, 9.      Additionally, he timely filed his reply to the agency’s
      response to the petition for review on December 29, 2015, based on the agency’s
      service of its response on him on December 16, 2015. PFR File, Tab 15; see
      5 C.F.R. § 1201.23 (“Unless a different deadline is specified by the Board or its
      designee, 5 days are added to a party’s deadline for responding to a document
      served on the party by mail.”).      Despite the untimeliness of the appellant’s
      supplement to his petition for review, we have nonetheless examined it, as well as
      his reply to the agency’s response, and we find that neither pleading meets the
      criteria for review under 5 C.F.R. § 1201.115.
¶19        As to the appellant’s requests for leave to file additional pleadings, the
      Board’s regulations do not provide for pleadings other than a petition for review,
      a cross petition for review, a response to the petition for review or cross petition
      for review, and a reply to a response. 5 C.F.R. § 1201.114(a)(5). For the Board
      to consider a pleading other than those set forth above, the party must describe
      the nature and need for the pleading. Id. In support of his initial request to file
      an additional pleading, the appellant asserts that he is still awaiting medical
      information from his psychiatrist.    PFR File, Tab 12.    However, as discussed
      above, the appellant was provided ample opportunity to obtain medical evidence
      before the close of the record below, and he has since been granted two filing
      extensions on review.     We therefore deny his request to file an additional
      pleading on this basis. For the same reasons, we also deny the appellant’s request
      to put the case on hold.     With his subsequent request to file an additional
      pleading, the appellant included with his motion “Progress Notes” from his
      medical provider dated January 9, 2009, that include prescription medications.
                                                                                   11

PFR File, Tab 16. Even assuming that this medical documentation previously
was not available despite the appellant’s due diligence, it is not material as it does
not provide evidence of his mental state during the requisite 1-year period
following his separation from the Postal Service.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional     information        is   available    at    the    court’s     website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
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      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
