Lamb v. Office of Personnel Management , 681 F. App'x 894 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY LAMB,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2016-2161
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-844E-15-0348-I-1.
______________________
Decided: March 7, 2017
______________________
RONALD PAUL ACKERMAN, Law Offices of Ronald P.
Ackerman, Culver City, CA, for petitioner.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER;
PAUL ST. HILLAIRE, Office of Personnel Management,
Washington, DC.
______________________
2 LAMB v. OPM
Before O’MALLEY, WALLACH, and HUGHES, Circuit Judges.
PER CURIAM.
Timothy Lamb (“Lamb”) appeals the final order of the
Merit Systems Protection Board (“the Board”) affirming
the Office of Personnel Management’s (“OPM”) decision
denying his application for disability retirement under
the Federal Employees’ Retirement System (“FERS”).
Lamb v. Office of Pers. Mgmt., 123 M.S.P.R. 401 (2016).
Because the Board’s decision contains no legal error and
because we lack jurisdiction to review OPM’s factual
findings relating to disability, we affirm.
BACKGROUND
Lamb served as a Special Agent (“SA”) for the Federal
Bureau of Investigation (“FBI”) in Portland, Oregon, for
several years. Lamb v. Office of Pers. Mgmt., No. SF-
844E-15-0348-I-1, 2015 WL 5184688, at *2 (M.S.P.B.
Sept. 3, 2015) (“Initial Decision”). The FBI proposed to
remove Lamb from his SA position in February 2013 for
unprofessional off-duty conduct and lack of candor. 1 Id.at *2–3. After an investigation, the FBI removed Lamb
from his position on August 23, 2013. Id. at *4.
1 The unprofessional off-duty conduct and lack of
candor charges against Lamb stemmed from a series of
incidents in which Lamb visited his former spouse’s
residence to pick up his children, after local police had
instructed Lamb that he would be arrested for trespass
should he visit that residence. Lamb was arrested for
trespass. Although not addressed in the notice of pro-
posed removal, Lamb also admitted to utilizing the ser-
vices of prostitutes during overseas vacations, a violation
of the FBI code of conduct. Initial Decision, 2015 WL
5184688, at *2–4.
LAMB v. OPM 3
Lamb sought psychological counseling in April 2013
after he learned that the FBI had proposed dismissing
him. Id. at *3. At about this same time, Lamb’s internist
recommended that Lamb not return to duty because he
exhibited symptoms of anxiety, depression, and a sleep
disorder. Id. at *4. Lamb continued to receive mental
health counseling for almost two years thereafter, during
which time his conditions worsened. Id. at *3. Lamb also
underwent a fitness for duty examination in April 2013,
after which the physician responsible for conducting
Lamb’s fitness for duty examination concluded he was
physically fit for duty. Id. at *4. The physician noted in
the examination report that Lamb had a mild hearing
deficit at higher frequencies in his left ear, but concluded
that this hearing deficit did not affect Lamb’s ability to
perform SA duties. Id.
In June 2014, Lamb filed an SF-3107 Application for
Immediate Retirement under FERS. Id. Lamb’s State-
ment of Disability declared that he suffered from depres-
sion, anxiety, panic disorder, sleep disorders, tinnitus,
and hearing loss. These conditions, according to Lamb,
prevented him from performing SA duties. J.A. 56.
OPM denied Lamb’s application for FERS disability
retirement in September 2014. Initial Decision, 2015 WL
5184688, at *5. OPM concluded that Lamb failed to
establish that he had a medical condition severe enough
to be disabling while employed in a FERS position. Lamb
requested reconsideration of OPM’s initial decision and
submitted supplemental medical documentation along
with other relevant documents in support of his request.
Included in these supplemental filings were medical
statements indicating that Lamb had sought and received
counseling services relating to his divorce between April
2010 and May 2013. Id. at *3. Lamb explained that he
did not disclose that counseling or any symptoms of
depression relating to his job because he feared doing so
might impact his job. Id. at *4. OPM sustained its initial
4 LAMB v. OPM
decision and concluded that Lamb’s supplemental medical
documentation did not adequately demonstrate that
Lamb had a disabling medical condition before he was
removed from federal service.
Lamb appealed this decision to the Board. After a
telephonic hearing and further supplementation of the
record, the administrative judge (“AJ”) determined that
Lamb had not established, by a preponderance of the
evidence, that he was disabled because of a medical
condition resulting in a deficiency in his performance,
conduct, or attendance as an SA. Id. at *6–7. The AJ
noted that Lamb’s counselor, psychologist, and physician
all had concluded Lamb was medically unable to perform
his duties due to the conditions Lamb alleged were disa-
bling. Id at *6. But the AJ found that the medical evi-
dence on the record indicated Lamb was able to control
his depression, anxiety, and sleeping issues such that he
was rendering useful and efficient service in his SA
position prior to his removal. Id. In other words, the AJ
found that any disabling symptoms were prompted by the
removal and circumstances relating thereto, and did not
predate it. The AJ also found that Lamb’s audiological
testing results indicated that Lamb only had mild to
moderate hearing loss in one ear that should not have
limited or disqualified Lamb from rendering useful and
efficient service in his SA position. Id. The AJ noted
that, in a June 2013 statement, Lamb indicated he was
prepared to return to his SA duties and requested a
transfer to a different division. Id. The AJ further found
that, at the time that the FBI issued the notice of pro-
posed removal, Lamb was a productive SA, “performing at
a satisfactory or higher level.” Id. The AJ also did not
find any indication that Lamb’s job attendance was unac-
ceptable, or that Lamb’s workplace conduct was unsatis-
factory. Id. at *7. On this point, the AJ noted that it was
Lamb’s off-duty conduct that prompted his removal, not
any on the job performance failures. Id.
LAMB v. OPM 5
Lamb filed a petition for review of the AJ’s initial de-
cision. Because the two Board members assigned to the
case could not agree on the disposition of Lamb’s petition,
the AJ’s initial decision became a non-precedential final
decision under 5 C.F.R. § 1200.3(b). 2 Lamb v. Office of
Pers. Mgmt., 123 M.S.P.R. 401 (2016). Lamb timely
appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s deci-
sion unless 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); see Fields v.
Dep’t of Justice, 452 F.3d 1297, 1301 (Fed. Cir. 2006).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support” the
Board’s conclusion. Consol. Edison Co. v. Nat’l Labor
Relations Bd., 305 U.S. 197, 229 (1938).
In an appeal from a denial of disability retirement
benefits under FERS, our jurisdiction is further limited.
Under 5 U.S.C. § 8461(d), we cannot review “the factual
underpinnings of physical disability determinations, but
may address whether there has been a substantial depar-
ture from important procedural rights, a misconstruction
2 5 C.F.R. § 1200.3(b) reads: “When due to a vacan-
cy, recusal or other reasons, the Board members are
unable to decide any case by majority vote, the decision,
recommendation or order under review shall be deemed
the final decision or order of the Board. The Chairman of
the Board may direct the issuance of an order consistent
with this paragraph.”
6 LAMB v. OPM
of the governing legislation, or some like error ‘going to
the heart of the administrative determination.’” Anthony
v. Office of Pers. Mgmt., 58 F.3d 620, 628 (Fed. Cir. 1995)
(quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768,
791 (1985)); see also Vanieken-Ryals v. Office of Pers.
Mgmt., 508 F.3d 1034, 1038 (Fed. Cir. 2007) (“[W]e may
only address the critical legal errors, if any, committed by
the [Board] in reviewing OPM’s decision.”).
An applicant for FERS disability retirement must es-
tablish by a preponderance of the evidence that: (1) the
applicant completed at least 18 months of creditable
civilian service; (2) while employed in a FERS position,
the applicant became disabled because of a medical condi-
tion, resulting in deficient performance, conduct, or at-
tendance, or if there is no such deficiency, the condition is
incompatible with either useful and efficient service or
retention in the position; (3) the disabling medical condi-
tion is expected to continue for at least one year from the
date of the application for disability retirement;
(4) accommodation of the disabling medical condition in
the position held is unreasonable; and (5) the applicant
has not declined an offer of reassignment to a vacant
position. See 5 U.S.C. § 8451(a); 5 C.F.R. § 844.103(a).
An applicant for disability retirement bears the bur-
den of proving, by a preponderance of evidence, that he or
she had a disability while employed in a position subject
to FERS. 5 C.F.R. §§ 844.103(a)(2), 1201.56(b)(2)(ii).
OPM determined here that Lamb failed to establish a
disabling medical condition pursuant to FERS, based on
specific factual findings regarding the onset and perfor-
mance impact of any medical symptoms or conditions.
After considering all relevant evidence on the record,
including Lamb’s supplemental materials, the Board
affirmed OPM’s factual determination. Although we may
have reached a different conclusion in this case had we
been the fact-finding body, we cannot review denials of
disability for substantial evidence.
LAMB v. OPM 7
Lamb has further failed to establish any procedural,
legal, or other fundamental error in the administrative
proceeding. See Lindahl, 470 U.S. at 791; Anthony, 58
F.3d at 626. There is no indication that the AJ failed to
examine the supplemental evidence Lamb submitted. In
fact, the Board’s initial decision references Lamb’s sup-
plementation of the record after OPM’s reconsideration
decision. Initial Decision, 2015 WL 5184688, at *5–6.
Lamb’s arguments as to evidentiary sufficiency and
evidentiary weight address the factual findings in this
case, not legal error. To the extent Lamb challenges the
Board’s evaluation of the totality of the evidence, we do
not have jurisdiction to review these findings. See Davis
v. Office of Pers. Mgmt., 470 F.3d 1059, 1060–61 (Fed. Cir.
2006) (citation omitted) (explaining that arguments
relating to whether the Board adequately considered the
totality of the evidence “are, in reality, challenges to the
factual underpinnings of the Board’s determination” that
we cannot review under Lindahl).
Lamb’s reliance on Marucci v. Office of Personnel
Management, 89 M.S.P.R. 442 (2001) is unpersuasive. In
Marucci, the Board explained that “the cause of the
condition is not relevant in determining whether an
employee is eligible for disability retirement. Instead, the
relevant inquiry focuses on whether the condition pre-
vents the employee from performing the duties necessary
for the job” and whether it did so while he was still em-
ployed in that position. Id. at 445. Here, the AJ focused
the analysis of Lamb’s claim on the progress of his condi-
tion as evidenced by the record, not on Lamb’s miscon-
duct: “While the appellant was removed for misconduct . .
. there is nothing in the record showing that the appel-
lant’s attendance was unacceptable, nor that his conduct
at the workplace was unsatisfactory.” Initial Decision,
2015 WL 5184688, at *7. The AJ concluded that Lamb
could perform his SA duties. Id. That factual finding is
not subject to our review. See Anthony, 58 F.3d at 628.
8 LAMB v. OPM
We have considered Lamb’s remaining arguments and
conclude that they are without merit. For the foregoing
reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.