Courtney v. Opm ( 2021 )


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  • Case: 21-1717    Document: 27     Page: 1   Filed: 11/10/2021
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    KATHY J. COURTNEY,
    Petitioner
    v.
    OFFICE OF PERSONNEL MANAGEMENT,
    Respondent
    ______________________
    2021-1717
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. DC-844E-20-0850-I-1.
    ______________________
    Decided: November 10, 2021
    ______________________
    KATHY J. COURTNEY, Raleigh, NC, pro se.
    EBONIE I. BRANCH, Commercial Litigation Branch,
    Civil Division, United States Department of Justice, Wash-
    ington, DC, for respondent. Also represented by BRIAN M.
    BOYNTON, MARTIN F. HOCKEY, JR., TARA K. HOGAN.
    ______________________
    Before NEWMAN, SCHALL, and PROST, Circuit Judges.
    PER CURIAM.
    Case: 21-1717    Document: 27      Page: 2    Filed: 11/10/2021
    2                                           COURTNEY   v. OPM
    Kathy Courtney seeks review of a decision by the Merit
    Systems Protection Board (“Board”) affirming a decision by
    the Office of Personnel Management (“OPM”) denying her
    application for disability retirement under the Federal Em-
    ployees Retirement System (“FERS”). The Board, in re-
    viewing OPM’s decision, agreed that Ms. Courtney had not
    met one of the requirements for disability retirement: that
    the applicant’s disability makes it impossible for the appli-
    cant to render useful and efficient service. As explained
    below, we affirm.
    BACKGROUND
    Ms. Courtney was employed by the Equal Employment
    Opportunity Commission (“EEOC”) as an Equal Oppor-
    tunity Investigator. She was removed from her federal em-
    ployment effective December 7, 2019. Removal was
    premised on a charge of being absent without leave
    (“AWOL”). Ms. Courtney appealed her removal, which the
    Board affirmed.
    During this time, Ms. Courtney applied to OPM for dis-
    ability retirement benefits. She asserted that she suffered
    from vision-related ailments, asthma, and diabetes. As a
    result of the vision problems, she said, she was unable to
    perform her duties, which were all computer-based, and
    she had difficulty commuting. In her disability retirement
    application, Ms. Courtney also said that she had requested
    reasonable accommodations that were not granted. The
    agency’s alleged failure to provide these accommodations,
    she said, resulted in her missing work and being unable to
    perform useful and efficient service.
    The agency completed its required materials for the
    disability application, including the Supervisor’s State-
    ment, Certificate of Reassignment and Accommodation Ef-
    forts, and Disability Retirement Application Checklist.
    Within those materials, the relevant agency employees in-
    dicated that requested reasonable accommodations had
    been provided and that Ms. Courtney’s performance even
    Case: 21-1717        Document: 27   Page: 3    Filed: 11/10/2021
    COURTNEY   v. OPM                                            3
    with her alleged disability “was not less than fully success-
    ful” (even if her conduct was unsatisfactory). App’x 2; see
    App’x 24–25. That is, in the agency’s view, her perfor-
    mance had not suffered.
    In April 2020, OPM denied Ms. Courtney’s disability
    retirement application, concluding that she had failed to
    establish (1) that her medical condition was incompatible
    with useful service or (2) that the agency-provided reason-
    able accommodations were ineffective. App’x 2, 57–59.
    She filed a request for reconsideration (and additional evi-
    dence, as allowed), which OPM denied on August 3, 2020.
    App’x 23–25.
    In September 2020, Ms. Courtney appealed OPM’s de-
    cision to the Board. App’x 3. The administrative judge as-
    signed to the case concluded that although Ms. Courtney
    met some of the requirements for disability retirement, she
    had not established that she was unable “to render useful
    and efficient service” in light of her disability—a require-
    ment of the relevant statute.            App’x 11; 5 U.S.C.
    § 8451(a)(1)(B). The administrative judge accordingly af-
    firmed OPM’s decision, App’x 14, and that affirmance be-
    came the final decision of the Board, see App’x 14, 19.
    Ms. Courtney next appealed to this court. We have ju-
    risdiction over this appeal pursuant to 28 U.S.C.
    § 1295(a)(9).
    DISCUSSION
    To be eligible for a disability retirement annuity under
    FERS, an employee must (1) have completed at least 18
    months of creditable civilian service; (2) be unable, because
    of disease or injury, to render useful and efficient service in
    her position; and (3) not have declined a reasonable offer of
    reassignment to a vacant position. 5 U.S.C. § 8451(a);
    5 C.F.R. § 844.103. The issue on appeal is the second of
    these requirements: whether Ms. Courtney was unable to
    render useful and efficient service in light of her disability.
    Case: 21-1717     Document: 27      Page: 4     Filed: 11/10/2021
    4                                             COURTNEY   v. OPM
    The scope of this court’s ability to review Board deci-
    sions is limited. We must affirm the Board’s decision un-
    less it 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); Yates v. MSPB, 
    145 F.3d 1480
    , 1483
    (Fed. Cir. 1998). Substantial evidence means “such rele-
    vant evidence as a reasonable mind might accept as ade-
    quate to support a conclusion.” McLaughlin v. OPM,
    
    353 F.3d 1363
    , 1369 (Fed. Cir. 2004) (quoting Matsushita
    Elec. Indus. Co. v. United States, 
    750 F.2d 927
    , 933
    (Fed. Cir. 1984)).
    This court’s power to review the Board is particularly
    limited in cases of denial of disability retirement under
    FERS. In such cases, we do not have jurisdiction to review
    “the factual underpinnings of physical disability determi-
    nations.” Anthony v. OPM, 
    58 F.3d 620
    , 626 (Fed. Cir.
    1995); see also 
    id. at 624
    –25 (noting that, with limited ex-
    ceptions not relevant here, “OPM’s factual findings and
    conclusions on disability may be reviewed only by the
    Board . . . and not by this court”); 5 U.S.C. § 8461(d). But
    we “may address whether there has been a ‘substantial de-
    parture from important procedural rights, a misconstruc-
    tion of the governing legislation, or some like error going to
    the heart of the administrative determination.’” Anthony,
    
    58 F.3d at 626
     (quoting Lindahl v. OPM, 
    470 U.S. 768
    , 791
    (1985)); see also 
    id.
     (considering “procedural, legal, or other
    fundamental error[s]” as among reviewable grounds). That
    is, “we may only address the critical legal errors, if any.”
    Vanieken-Ryals v. OPM, 
    508 F.3d 1034
    , 1038–39 (Fed. Cir.
    2007). Further, we are “limited to reviewing decisions of
    the Board based on the record before the deciding official”
    and may not consider “evidence that was not part of the
    record before the administrative judge.” Mueller v. USPS,
    
    76 F.3d 1198
    , 1201–02 (Fed. Cir. 1996).
    Case: 21-1717        Document: 27   Page: 5   Filed: 11/10/2021
    COURTNEY   v. OPM                                          5
    The Board considered the evidentiary record before it,
    reviewed it in detail, and ultimately agreed with OPM that
    Ms. Courtney’s position was not supported. The Board first
    observed that Ms. Courtney’s “performance was highly suc-
    cessful on her last rating of record” before her absence.
    App’x 11. Further, her supervisor stated that her perfor-
    mance was “not less than fully successful in any critical el-
    ement.” App’x 11–12. Indeed, the Board observed that
    “there is no evidence that [Ms. Courtney’s] performance
    was unsatisfactory.” App’x 13–14. And although she was
    absent from work, the Board found that her “absence from
    work alone” was “insufficient to support a finding in favor
    of disability retirement.” App’x 14.
    Ms. Courtney argued that the agency failed to grant
    her reasonable accommodations, effectively forcing her out
    because of her disability. The Board, however, reviewed
    the record and found that each time Ms. Courtney re-
    quested reasonable accommodations, they were granted.
    App’x 12. Namely, “the agency granted the appellant more
    than 12 accommodations to include software to help her
    read and write and otherwise work on her computer, hard-
    ware for the same purpose, an adjusted work schedule and
    telework as appropriate in accordance with the appellant’s
    request, as well as breaks when needed.” App’x 12.
    Ms. Courtney had argued in particular that she was denied
    telework, a device called a “Reader,” and the time to un-
    dergo certain software training related to her requested ac-
    commodations. App’x 12. But the record showed that
    (1) she was approved for telework but had withdrawn her
    own request for it, (2) she had not shown that she had re-
    quested a Reader and had failed to establish that the
    Reader was a necessary accommodation, and (3) the agency
    had said that her caseload expectations would be consid-
    ered in light of the time it would take to learn the software
    and hardware for her accommodations. App’x 12–13. Fi-
    nally, the Board concluded that Ms. Courtney had not iden-
    tified any “medical record, report, or advice that would
    Case: 21-1717    Document: 27      Page: 6   Filed: 11/10/2021
    6                                           COURTNEY   v. OPM
    suggest [that] she was unable to work on a computer at all
    or that the accommodations provided by the agency were
    inadequate to perform the duties of her position.” App’x 13.
    These determinations are findings of fact that we lack
    jurisdiction to consider. Accordingly, we cannot set aside
    the Board’s conclusion that Ms. Courtney failed to show
    that she was unable “to render useful and efficient service”
    in light of her disability. And, although we have considered
    Ms. Courtney’s other arguments regarding the Board’s
    conclusion, we have identified no “procedural, legal, or
    other fundamental error,” Anthony, 
    58 F.3d at 626,
     that
    would result in setting aside the Board’s decision.
    CONCLUSION
    We have considered Ms. Courtney’s remaining argu-
    ments but find them unpersuasive. 1 For the reasons above,
    we affirm the Board’s decision.
    AFFIRMED
    COSTS
    No costs.
    1   Some of Ms. Courtney’s arguments concern chal-
    lenges to the removal itself. This appeal, however, is only
    about the denial of disability retirement by OPM. The al-
    leged errors surrounding removal were not connected to
    OPM’s disability-retirement findings—and Ms. Courtney
    has separately appealed her removal. See Courtney
    v. EEOC, No. 21-1628, slip op. (Fed. Cir. Nov. 10, 2021).
    We have also considered Ms. Courtney’s Memorandum in
    Lieu of Oral Argument.