THE FEDERAL CIRCUIT RULES IT HAS JURISDICTION TO REVIEW THE MSPB’S DETEMINATION OF WHETHER AN APPLICANT FOR DISABILITY
REITREMENT WAS MENTALLY INCOMPETENT DURING THE ONE-YEAR FILING PERIOD TO WARRANT A WAIVER OF THAT PERIOD
In McLaughlin v. OPM, Fed. Cir. No. 03-3049 (January 6, 2004), the U.S. Court of Appeals for the Federal Circuit was faced with the question of whether it had jurisdiction to review a determination by the Merit Systems Protection Board that an applicant for disability retirement was not incompetent during the one-year filing period and therefore not entitled to a waiver of that filing period. The question was novel to the Court because, under a prior Supreme Court ruling, the Federal Circuit cannot review the factual underpinnings of disability retirement determinations. Rather, MSPB’s review of OPM’s factual determinations of whether a retiree meets the definition of disabled are final.
In this case, however, the issue was not whether Ms. McLaughlin met the statutory definition of disabled, but whether she was mentally incompetent for purposes of meeting the filing deadline. The Federal Circuit distinguished the two stating that the determination of whether an applicant is incompetent for filing purposes does not require a review of the determination as to whether the applicant is in fact disabled. The two inquiries concern different facts, and moreover, disability under the statute does not require mental incompetence. Consequently, the Court held that it had jurisdiction to review the MSPB’s determination under its usual review standard: whether the Board decision is supported by substantial evidence.
Unfortunately for Ms. McLauglin, the Court sustained the Board’s holding that she had not proved that she was incompetent during the filing period. After reviewing conflicting medical evidence, some of which found that Ms. McLaughlin’s mental status was normal, and others that found her depression left her unable to timely apply for disability retirement, the Court held that “we cannot say that the Board’s decision is unsupported by substantial evidence.” The Court did, however, disagree with the Board’s holding that a medical opinion written after the application for disability retirement is filed is entitled to less weight than one written before the application is made.
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