Appeal from Merit Systems Protection Board. Docket No. CH831E9110423.
Before Rich, Mayer, and Schall, Circuit Judges.
Petitioner Joseph L. Whyde seeks review of the decision of the Merit Systems Protection Board (Board) in Docket No. CH831E9110423. By Order dated December 9, 1991, the Board denied Mr. Whyde's petition for review of the initial decision of the administrative Judge (AJ). In his decision, the AJ affirmed the reconsideration decision of the Office of Personnel Management (OPM) which disallowed Mr. Whyde's application for disability retirement on the grounds that the application was not timely filed and that Mr. Whyde was not entitled to a waiver of the time limitation for filing an application. For the reasons set forth below, we reverse the decision of the Board and remand the case for a hearing on the question of whether Mr. Whyde is entitled to a waiver of the one year time limitation set forth in 5 U.S.C. § 8337(b) for the filing of an application for disability retirement.
The statute requires that an application for disability retirement be filed with OPM before an employee retires from service or within one year thereafter. 5 U.S.C. § 8337(b). It is undisputed that OPM did not receive Mr. Whyde's application for disability retirement until December 21, 1990, more than one year after Mr. Whyde was separated from the Postal Service on September 2, 1988.
The statute provides, however, that the time limitation may be waived for an employee who
at the date of separation is mentally incompetent, if the application is filed within one year from the date of restoration of the employee . . . to competency or the appointment of a fiduciary, whichever is earlier.
OPM has stated, and the parties agree, that for purposes of the waiver provision, mental incompetency means that an individual "is or was unable to handle his/her personal affairs because of either physical or mental disease or injury."
Mr. Whyde appealed OPM's reconsideration decision to the Board on a pro se basis. On April 11, 1991, after the appeal was filed, the AJ issued the standard Acknowledgement Order. Thereafter, on June 14, 1991, the AJ held a telephone conference with the parties. Following the conference, the AJ issued an order in which he stated that, in the course of the conference, Mr. Whyde withdrew his request for a hearing and agreed to have his appeal decided on the basis of his and OPM's written submissions. On appeal, Mr. Whyde contends that, at the time, he was not aware that he was waiving his right to a hearing and that he only intended to postpone the hearing date.
On June 21, 1991, the AJ rendered his decision. In affirming OPM's reconsideration decision that Mr. Whyde was not entitled to a waiver of the one year time period for applying for disability retirement, the AJ stated that Mr. Whyde "did not submit any evidence of mental incompetency." The AJ concluded that Mr. Whyde was not entitled to a waiver "because the appellant does not claim nor does the record show that he was mentally incompetent at the time of his separation from the service or within one year after the separation. . . ."
We review a decision of the Board to determine whether it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation being followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7702(c). Cheeseman v. Office of Personnel Management, 791 F.2d 138, 141 (Fed. Cir. 1986), cert denied 479 U.S. 1037 (1987). In this case, we conclude that the decision of the Board must be reversed because, in view of Mr. Whyde's assertions and the evidence before the AJ, the decision is based on an error of law. Specifically, the statements of the AJ that Mr. Whyde did not claim mental incompetency and that he did not ...