Manuel V. Custodio v. Office of Personnel Management

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
MANUEL V. CUSTODIO,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
2011-3121
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0831090810-B-1.
__________________________
Decided: November 14, 2011
__________________________
M ANUEL V. CUSTODIO , of San Jose, California, pro se.
M ICHELLE R. M ILBERG , Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. D AVIDSON , Director, and DEBORAH A.
BYNUM, Assistant Director.
__________________________

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CUSTODIO v. OPM 2
Before RADER, Chief Judge, and DYK and REYNA, Circuit
Judges.
PER CURIAM.
Manuel V. Custodio appeals the Merit Systems Pro-
tection Board’s dismissal of his claim for disability re-
tirement benefits under the Civil Service Retirement
System. Custodio v. Merit Sys. Prot. Bd., No.
SF0831090810-B-1 (M.S.P.B. April 4, 2011) (“Final Or-
der”). This court affirms.
I.
A. Factual Background
Mr. Custodio served in active military service from
November 18, 1966 to April 17, 1974. Following his
military service, Mr. Custodio received a career condi-
tional appointment as a janitor in the competitive service,
where he worked from April 18, 1974 to April 20, 1979.
In this position, he was under the Civil Service retirement
plan. On April 20, 1979, Mr. Custodio requested a refund
of his retirement deductions and received a lump sum.
B. Procedural History
On February 25, 2007, nearly twenty-six years follow-
ing his departure from the competitive service, Mr. Cus-
todio applied for disability retirement benefits under the
Civil Service Retirement System. The Office of Personnel
Management (“OPM”) denied his request.
Mr. Custodio appealed the OPM’s decision to the
Merit Systems Protection Board (“Board”). In support of
his appeal, he submitted copies of a Social Security Ad-
ministration Award Notice (“S.S. Award Notice”) and a

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CUSTODIO v. OPM 3
Veterans Administration Claim Award Notice (“VA Claim
Notice”) as evidence of his disability. The Board held that
Mr. Custodio’s application for disability retirement bene-
fits was filed outside the requisite timeframe. Because
the Board did not address the merits of the claim, it did
not address the substance of the evidence that Mr. Custo-
dio submitted in support of his claim. The Board noted
that Mr. Custodio had not provided a basis for waiving
the filing deadline, citing Marcee v. United States, 55 F.2d
525, 526 (Ct. Cl. 1972) (disability retirement benefits can
be waived only for an employee who is either mentally
incompetent on leaving the federal service, or who be-
comes mentally incompetent within one year thereafter).
As a result, the Board issued an Initial Decision that
dismissed Mr. Custodio’s claim.
Mr. Custodio timely filed a petition for review of the
Initial Decision with the Board. To support his petition,
Mr. Custodio submitted a Medical Abstract by Jose Rom-
mel T. Soriano, M.D. dated February 16, 2007 (“Medical
Abstract”). In a document entitled “Motion for Leave to
Accept Supplemental Evidence,” Mr. Custodio requested
that the Medical Abstract be accepted as evidence estab-
lishing mental incompetence under a diagnosis of severe
depression. The Board denied the Motion and rejected
the Medical Abstract on the basis that it was new evi-
dence not previously provided to the OPM or to the ad-
ministrative law judge. The Board found that Mr.
Custodio failed to meet the standard set forth in Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
(new and material evidence must be shown to not have
been previously available despite the party’s due dili-

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CUSTODIO v. OPM 4
gence). The Board issued its Final Decision and dis-
missed Mr. Custodio’s petition.1
On April 27, 2011, Mr. Custodio timely appealed the
Board’s Final Decision to this court.
This court has jurisdiction under 28 U.S.C. §
1295(a)(9).
II.
Mr. Custodio’s informal brief raises three distinct is-
sues: (1) that the Board erred in determining that Mr.
Custodio did not qualify for a waiver to the filing dead-
line; (2) that the Board erred when it failed to consider
the Medical Abstract and the S.S. Award as evidence of
his disability; and (3) that this Court should appoint legal
counsel for him on appeal. We address each of these
arguments in turn.
A. Standard of Review
This court’s review of Board decisions is limited by
statute. Decisions of the Board must be affirmed unless
the decision is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). See also An-
thony v. Office of Pers. Mgmt., 58 F.3d 620, 624 (1995);
Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 140
(Fed. Cir. 1986).
1 The Board also addressed an allegation of bias on
the part of the administrative law judge. Mr. Custodio
did not raise this issue on appeal.

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CUSTODIO v. OPM 5
B. Waiver of Deadline
Mr. Custodio argues that the Board erred when it de-
termined that he was not entitled to a waiver under 5
U.S.C. § 8453. We agree with the Board that Mr. Custo-
dio’s claim was filed out of time and that a waiver does
not apply.
We find that Mr. Custodio is not entitled to a waiver
under 5 U.S.C. § 8453. The statute provides that the
“time limitation may be waived by the Office for an em-
ployee or Member who, at the date of separation from
service or within 1 year thereafter, is mentally incompe-
tent.” Id. In its Final Decision, the Board concluded that
it could not consider the mental incompetency argument
because it was raised for the first time in his petition for
review to the Board, and because Mr. Custodio failed to
demonstrate that the Medical Abstract was new and
material evidence not previously available despite his due
diligence. 5 C.F.R. § 1201.115(d)(1). We find that the
Board’s decision regarding waiver was not arbitrary,
capricious, or otherwise contrary to law. Anthony, 58
F.3d at 625; see also, Mueller v. U.S. Postal Serv., 76 F.3d
1198, 1201-02 (Fed. Cir. 1996). We affirm the Board’s
determination that Mr. Custodio is not entitled to a
waiver of the applicable time limits.
C. Disability Retirement Benefits Claim
Mr. Custodio argues that the Board erred when it
failed to consider the S.S. Award Notice and the Medical
Abstract as evidence of disability. As noted above, the
Board did not reach the merits on whether Mr. Custodio
was entitled to disability benefits given that his applica-
tion was untimely filed. Since we agree that Mr. Custo-
dio’s claims were untimely and that he was not entitled to

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CUSTODIO v. OPM 6
a waiver, we find no error in the Board’s refusal to con-
sider the S.S. Award Notice and the Medical Abstract.
D. Request for Appointed Counsel
Mr. Custodio seeks to have counsel appointed to rep-
resent him in his appeal before this Court. In particular,
Mr. Custodio argues that appointment of counsel is
necessary in order to ensure that his rights are protected
under the Uniformed Services and Reemployment Rights
Act (“USERRA”) and the Veterans Employment Opportu-
nity Act (“VEOA”). We conclude that appointment of
counsel would not aid in this appeal. Accordingly, Mr.
Custodio's request for appointment of counsel is denied.
III.
Accordingly, this court affirms the Board’s decision to
dismiss Mr. Custodio’s claim for disability retirement
benefits under the Civil Service Retirement System.
AFFIRMED
COSTS
Each party shall bear its own costs.

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