                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.


   United States Court of Appeals for the Federal Circuit


                                       05-3224


                              SAMUEL G. MCDANIEL,

                                                     Petitioner,


                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                     Respondent.


                           __________________________

                           DECIDED: February 15, 2006
                           __________________________



Before RADER, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.


                                      DECISION

      Samuel G. McDaniel petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) that affirmed the denial by the Office of Personnel

Management (“OPM”) of his application for disability retirement as untimely. McDaniel

v. Office of Pers. Mgmt., No. SF-0831-04-0084-I-1 (M.S.P.B. May 16, 2005). We affirm.
                                    DISCUSSION

                                           I.

      Mr. McDaniel was employed by the United States Postal Service (“USPS”) until

he was separated from his position in September 1995.

      In March 2003, Mr. McDaniel filed a petition for disability benefits with OPM. In a

May 27, 2003 letter, OPM (i) explained that a disability retirement application must be

filed within one year of separation pursuant to 5 U.S.C. § 8337(b); (ii) noted that the

time can only be waived if the employee is mentally incompetent on the date of

separation or within one year thereafter; and (iii) requested that Mr. McDaniel submit

medical information establishing that he was mentally incompetent from September 5,

1995, through September 1996. Mr. McDaniel did not submit any evidence of mental

incompetence, so on July 17, 2003, OPM dismissed Mr. McDaniel’s claim as untimely.

Mr. McDaniel sought reconsideration of OPM’s decision, but he did not provide any new

documentation. On October 29, 2003, OPM affirmed its initial decision.

      Mr. McDaniel timely appealed to the Board. On May 5, 2004, the administrative

judge (“AJ”) to whom the appeal was assigned issued an initial decision affirming

OPM’s dismissal.     McDaniel v. Office of Pers. Mgmt., No. SF-0831-04-0084-I-1

(M.S.P.B. May 5, 2004). The AJ concluded that Mr. McDaniel did not meet his burden

of proof that he was unable to handle his personal affairs because of mental disease or

injury. On the contrary, the AJ found that the evidence demonstrated that during the

entire time of his period of separation, Mr. McDaniel had been participating in legal

processes that required him to file documents and meet deadlines, and that he had

been in enrolled in community college. The AJ thus affirmed OPM’s dismissal. That




05-3224                                    2
decision became final on May 16, 2005. McDaniel v. Office of Pers. Mgmt., No. SF-

0831-04-0084-I-1 (M.S.P.B. May 16, 2005). This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(9).

                                             II.

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of

Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). A Board decision is

unsupported by substantial evidence when it lacks “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Matsushita Elec.

Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (citations omitted).

       The Board did not err in affirming OPM’s denial of Mr. McDaniel’s application for

disability retirement as untimely. It is undisputed that Mr. McDaniel was separated from

his position with the USPS in September 1995 and that he did not file a petition for

disability benefits with OPM until March 2003. Thus, the application was not filed within

one year of the date that Mr. McDaniel was separated from service. Section 8337(b)

states that a claim for disability retirement “may be allowed under this section only if the

application is filed with the Office before the employee or Member is separated from the

service or within 1 year thereafter.”      5 U.S.C. § 8337(b) (2000).         Under these

circumstances, the application is untimely. This time limitation may be waived only if an

employee is, at the date of separation from service or within 1 year thereafter, mentally




05-3224                                      3
incompetent. Id. There is no basis to waive the time limitation, as Mr. McDaniel has not

provided any evidence that at the date of his separation or within one year thereafter he

was mentally incompetent. The OPM therefore did not err in denying Mr. McDaniel’s

application for disability retirement, see Deerinwater v. Office of Pers. Mgmt., 78 F.3d

570, 573 (Fed. Cir. 1996) (holding that OPM lacks the authority to consider an untimely

application), and the Board’s decision is supported by substantial evidence, see

McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1368-69 (Fed. Cir. 2004) (finding

that the Board’s decision that the employee did not prove mental incompetence during

the statutory period was supported by substantial evidence).

      For the foregoing reasons, the final decision of the Board is affirmed.

      No costs.




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