Ronald L. Gatlin v. Office of Personnel Management, AT831E000846-M-1, April 5, 2002.

In order for employees to have time limits waived or extended because of a medical problem, they need not show that they were incapacitated but only that they "suffered from an illness during the filing period that "affected" or "impaired" [their] ability to file timely."

The appellant was an Engineering Technician with the Department of the Air Force. Effective November 7, 1997, the agency removed him for falsifying official documents and he appealed that action to the Merit Systems Protection Board (MSPB). On December 8, 1997, he applied for disability retirement based on severe back pain, psychological stress, inguinal hernia, diabetes, and hypertension. The Office of Personnel Management (OPM) denied his application and affirmed its denial in an August 23, 1999, reconsideration decision. On August 23, 2000, the appellant, who was represented for the first time, filed a petition for appeal of OPM’s reconsideration decision.

The administrative judge dismissed the appellant’s petition for appeal as untimely. He found that the appeal was more than 10 months late. He further found that the appellant had failed to establish good cause for the untimeliness.

The appellant next filed a petition for review with the Federal Circuit. The Board subsequently moved that the court remand the case and the court granted the motion.

On remand, the Board concluded that to establish good cause for the untimely filing of an appeal an appellant must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. To establish specifically that an untimely filing resulted from illness, the Board held, citing Lacy v. Department of the Navy, 78 M.S.P.R. 434 (1998), that an appellant must: (1) identify the time period during which he suffered from the illness; (2) submit medical or other evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his appeal or a request for a time extension.

The Board found that the administrative judge (AJ) did not apply this standard in determining that the appellant failed to show good cause for his untimely filing. The AJ found that the appellant’s physical and mental conditions "were not so severe" that they prevented his timely filing. Concerning the appellant’s physical conditions, the AJ found that they did not preclude him from handling his affairs because "they did not require his commitment to a hospital or other care facility, or require him to be home bound." Concerning the appellant’s mental condition, the AJ found no evidence that the psychiatrist’s diagnoses were based on objective evidence "that would support a finding of a major psychiatric condition such as a paranoid delusion or other major depressive disorder." The AJ further found that the evidence did not show the "existence of a major psychiatric condition" that would have prevented the appellant from untimely filing his appeal.

Under Lacy, though, the appellant need show only that he suffered from an illness during the filing period that "affected" or "impaired" his ability to file timely. Lacy specifically holds that an appellant is not required to show that he was "incapacitated." According to the Board, the showing that the AJ required--i.e., "the existence of a major psychiatric condition that would have prevented him from timely filing"--in effect required the appellant to demonstrate incapacitation. That is inconsistent with Lacy. Applying the correct standard, the Board found that the appellant had established good cause for the untimeliness of his petition for appeal.

The Board found that the appellant also supported his claim that his mental and physical conditions impaired his ability to timely file with (a) the deposition of his internist, (b) affidavits from two family members and his attorney’s receptionist, and (c) his own affidavit. In an October 20, 2000, deposition, the internist testified that the appellant has had chronic back pain since 1996, diabetes, hypertension, and hernia. He stated that the appellant had missed several appointments and been late for just about all of them.

Based on the evidence in this case, the Board concluded that the appellant had identified mental and physical conditions from which he suffered during the entire period of his filing delay. He had provided evidence of their existence and effect on him from his psychiatrist and internist, as well as other corroborating evidence from his family. He further provided evidence that his family acted quickly to obtain legal advice once they understood that his disability retirement application had been denied. All of this is adequate evidence from which to conclude that the appellant’s mental and physical conditions impaired or adversely affected his ability to file a timely petition for appeal or a request for a time extension.

Accordingly, the Board remanded the case to the regional office for adjudication on the merits of the appellant’s disability retirement application.

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