Hood v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAINEY L. HOOD,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3126
______________________
Petition for review of the Merit Systems Protection
Board in No. DA831E120227-I-1.
______________________
Decided: February 11, 2014
______________________
RAINEY L. HOOD, of Dallas, Texas, pro se.
ANTONIA R. SOARES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and FRANKLIN E.
WHITE, JR., Assistant Director.
______________________
Before DYK, PROST, and O’MALLEY, Circuit Judges.
2 HOOD v. OPM
PER CURIAM.
Rainey L. Hood seeks review of a final order of the
Merit Systems Protection Board (“Board”) finding that he
has not shown that he is entitled to a disability retire-
ment annuity. See Hood v. Office of Pers. Mgmt., No.
DA831E120227-I-1 (M.S.P.B. June 15, 2012) (“Initial
Decision”); id. (M.S.P.B. Apr. 18, 2013) (“Final Order”).
Because the Board did not err in denying Mr. Hood’s
disability retirement application, we affirm.
BACKGROUND
Mr. Hood was employed by the Department of Veter-
ans Affairs (“VA”) in Dallas, Texas, as an electronics
mechanic. In August 2008, Mr. Hood’s doctors discovered
a lesion on his back. After undergoing a biopsy of the
lesion, Mr. Hood began to experience back pain. His
doctor advised him to avoid heavy lifting, stooping, bend-
ing, or twisting at the waist. One month later his doctor
released Mr. Hood to return to his normal activities, with
the exception of a twenty-five pound lifting restriction.
Throughout the next seven months, Mr. Hood continued
to see doctors, complaining about back pain.
On August 10, 2009, Mr. Hood was admitted into an
in-patient rehabilitation program due to an alcohol addic-
tion. In January 2010, Mr. Hood’s doctors discovered a
third degree complete AV block in his heart and implant-
ed a pacemaker. When he was discharged, Mr. Hood was
encouraged to exercise to improve his heart muscle.
Although the record indicates that Mr. Hood continued to
complain about his inability to perform his job duties due
to back pain and shortness of breath, none of his doctors
placed further restrictions on his job duties before he
applied for disability retirement in July 2010.
In response to Mr. Hood’s application, Rebecca K.
Anderson, Mr. Hood’s supervisor, submitted a statement
saying that Mr. Hood had stopped coming to work and
HOOD v. OPM 3
was on administrative absence pending the determination
of a disciplinary action. She described his conduct as
unsatisfactory, and Mr. Hood admitted that he abused
alcohol and reported to work under the influence. Mr.
Hood was removed from his position on August 3, 2010
due to this misconduct.
The record also contains a statement, dated April 11,
2012, from Dr. Muhammad A. Sattar, who examined Mr.
Hood and concluded that Mr. Hood is “disabled and
unable to continue with his job duties according to this job
description.” Initial Decision at 7.
The Office of Personnel Management (“OPM”) initially
denied Mr. Hood’s disability retirement application. After
reviewing the case, a Merit Systems Protection Board
administrative judge found that Mr. Hood failed to estab-
lish by the preponderance of the evidence that he is
unable, because of disease or injury, to render useful and
efficient service in his position. Id. at 10. The adminis-
trative judge noted that although there is no dispute that
Mr. Hood suffers from several medical conditions, the
record contains evidence that Mr. Hood can walk for
extended periods of time, climb several flights of stairs
and has been encouraged by his doctors to be active. Id.
at 9. Although the administrative judge considered Dr.
Sattar’s statement, he noted that Dr. Sattar failed to cite
any laboratory or medical test results supporting his
restrictions and “merely reiterated what the appellant
had said to him.” Id.
Mr. Hood next appealed to the Board, which denied
his petition for review and adopted the administrative
judge’s decision as its final decision. Final Order at 2.
Mr. Hood argued to the Board that under Bruner v. Office
of Personnel Management, 996 F.2d 290, 294 (Fed. Cir.
1993), his removal created a presumption that he met the
disability retirement criteria. But the Board found that
the Bruner presumption applies only when the removal
4 HOOD v. OPM
was for physical inability to perform. See Bruner, 996
F.2d at 294; Final Order at 3. And Mr. Hood’s removal
was for misconduct unrelated to his medical condition.
See Final Order at 3. The Board also agreed with the
administrative judge’s assessment of Dr. Sattar’s letter
along with its consideration of all the other evidence on
the record. Id. at 5. Mr. Hood has appealed the Board’s
final order.
DISCUSSION
We must affirm a Board decision unless the decision
is: (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); see also Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984). We also are precluded
from reviewing the factual underpinnings of the Board’s
disability determination. Anthony v. Office of Pers.
Mgmt., 58 F.3d 620, 625 (Fed. Cir. 1995) (“[W]e must
reject challenges to the Board’s factual determinations on
physical disability.”).
A federal employee is eligible for retirement disability
under the Civil Service Retirement System if: (1) the
employee has been in civilian service for more than five
years; (2) OPM determines that the employee is disabled;
and (3) the employee applies for disability retirement
before being separated from service or within one year
thereafter. 5 U.S.C. § 8337(a)-(b).
The only disputed issue in this case involves second
prong, i.e., whether Mr. Hood is disabled. To be consid-
ered disabled, the employee must establish that he is
unable, because of disease or injury, “to render useful and
efficient service in the employee’s position and is not
qualified for reassignment . . . to a vacant position . . . at
the same grade or level.” 5 U.S.C. § 8337(a).
HOOD v. OPM 5
On appeal, Mr. Hood challenges several of the Board’s
factual findings. Pet’r’s Br. Attach. 1-5. However, we
may not review the Board’s factual findings in disability
retirement cases. See, e.g., Lindahl v. Office of Pers.
Mgmt., 470 U.S. 768, 791 (1985) (citing Scroggins v.
United States, 397 F.2d 295, 297 (Ct. Cl. 1968)) (“[T]he
factual underpinnings of § 8347 disability determinations
may not be judicially reviewed, [but] such review is avail-
able to determine whether ‘there has been a substantial
departure from important procedural rights, a miscon-
struction of the governing legislation, or some like error
going to the heart of the administrative determination.’”);
Davis v. Office of Pers. Mgmt., 470 F.3d 1059, 1060-61
(Fed. Cir. 2006) (rejecting the claimant’s theory “that the
Board improperly failed to consider the totality of the
evidence, thus constituting . . . a misconstruction of the
governing legislation” as a factual challenge beyond our
jurisdiction). Therefore, we lack jurisdiction to consider
Mr. Hood’s challenges to the Board’s evaluation of the
evidence.
Mr. Hood also contends that the Board erred in con-
cluding that the Bruner presumption does not apply. See
Pet’r’s Br. Attach. 1-2; Final Order at 3. In Bruner, we
held that “the government’s action in separating an
employee for disablement produces a presumption of
disability that serves to shift to the government the
burden of production[,]” so the government must then
“come forward with enough evidence that a reasonable
fact finder could conclude that the applicant did not
qualify under 5 C.F.R. § 831.502(b).” 996 F.2d at 294.
However, evidence on the record here indicates that Mr.
Hood was removed from his position due to his miscon-
duct, not his disability. Under these circumstances, the
Bruner presumption does not apply. See, e.g., Sangillo v.
Office of Pers. Mgmt., No. 99-3414, 2000 WL 1845778, at
*2 (Fed. Cir. Dec. 15, 2000) (stating that because the
claimant was terminated for failure to perform his duties,
6 HOOD v. OPM
not based on a disability, it was still the claimant’s bur-
den to show that he is disabled); Delceg v. Office of Pers.
Mgmt., 100 M.S.P.R. 467, 470-71 (2005) (“The record is
clear that the [claimant]’s removal was based on his
misconduct, a verbal altercation with a Postal customer,
and not on any alleged physical inability to perform his
duties. Thus, the administrative judge did not err in
finding that the [claimant] was not entitled to the Bruner
presumption.”).
In addition, Mr. Hood argues that the Board improp-
erly failed to consider evidence submitted following the
administrative judge’s Initial Decision showing that he
received assistance in the performance of his employment
duties from 2008 to 2010. Pet’r’s Br. Attach. 2-3. The
Board explained that it did not consider this evidence
because Mr. Hood failed to show that such information
was previously unavailable despite his due diligence.
Final Order at 4. We agree with the Board, as even on
appeal Mr. Hood has not stated why this information was
not previously available and instead merely explained
why the letter was difficult to obtain. See Brenneman v.
Office of Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006)
(citing Comer v. Dep’t of Veterans Affairs, 78 M.S.P.R.
633, 636 (1998) aff’d sub nom. Comer v. Merit Sys. Prot.
Bd., 178 F.3d 1313 (Fed. Cir. 1999)) (“When documentary
materials are asserted to be new and material evidence,
the information contained in the documents, not just the
documents themselves, must have been unavailable
despite due diligence when the record closed.”).
We have considered Mr. Hood’s remaining arguments
and conclude that they similarly lack merit. Thus, we
hold that the Board did not err in finding that Mr. Hood
failed to show he was entitled to disability retirement
benefits. For the foregoing reasons, we affirm the deci-
sion of the Board.
HOOD v. OPM 7
AFFIRMED
COSTS
Each party shall bear its own costs.