O'Connor v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3267
THOMAS F. O’CONNOR,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: December 11, 2006
___________________________
Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Thomas F. O’Connor petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) that sustained the reconsideration decision of the
Office of Personnel Management (“OPM”) denying his application for disability
retirement under the Civil Service Retirement System (“CSRS”). O’Connor v. Office of
Pers. Mgmt., No. PH-0831-05-0173-I-1 (M.S.P.B. Mar. 29, 2006). We affirm.
DISCUSSION
I.
Mr. O’Connor, a former employee of the United States Postal Service, applied to
OPM for disability retirement on May 22, 2003, several years after he left his
employment with the Postal Service. In his application, Mr. O’Connor stated that he
suffered from a number of disabling conditions, both mental and physical. In a
reconsideration decision dated December 20, 2004, OPM denied the application. Mr.
O’Connor timely appealed to the Board, where the case was assigned to an
administrative law judge (“AJ”). Following a telephonic hearing, the AJ rendered an
initial decision sustaining OPM’s reconsideration decision. O’Connor v. Office of Pers.
Mgmt., No. PH-0831-05-0173-I-1 (M.S.P.B. Sept. 7, 2005) (Initial Decision). The AJ’s
initial decision became the final decision of the Board on March 29, 2006, when the
Board denied Mr. O’Connor’s petition for review for failure to meet the criteria for review
set forth at 5 C.F.R. § 1201.113(d). This appeal followed. We have jurisdiction
pursuant to 28 U..S.C. § 1295(a)(9).
II.
Our review of decisions denying applications for disability retirement is narrowly
circumscribed. Under 5 U.S.C. § 8347(c), OPM’s factual determinations regarding an
applicant’s disability are “final and conclusive and not subject to review.” See
Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1327 (Fed. Cir. 2006). In Lindahl
v. Office of Pers. Mgmt., 470 U.S. 768 (1985), the Supreme Court held that our review
in disability cases is limited to determining whether “there has been a substantial
departure from important procedural rights, a misconstruction of the governing
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legislation, or some like error going to the heart of the administrative determination.” Id.
at 791; see also Pitsker v. Office of Pers. Mgmt., 234 F.3d 1378, 1380-81 (Fed. Cir.
1995).
Other than generally challenging the findings of OPM and the Board with respect
to his claimed disabilities – matters which we may not review – Mr. O’Connor argues
that the Board failed to take into account the Social Security Administration’s (“SSA’s”)
determination that he was disabled, which it was required to do. See Trevan v. Office of
Pers. Mgmt., 69 F.3d 520, 526 (Fed. Cir. 1995). We understand Mr. O’Connor to be
making an argument of harmful procedural error, which we may review. We reject the
argument, however. Although Mr. O’Connor failed to present any documentation
showing SSA’s determination, see Initial Decision, slip op. at 15, the AJ assumed for
purposes of the appeal that SSA had made such a determination. The AJ found,
however, that any such determination was outweighed by the evidence before him. A
determination by SSA that an individual is disabled does not establish entitlement to
CSRS disability benefits as a matter of law. Trevan, 69 F.3d at 526. Because the
Board considered the appeal based upon the assumption that the SSA had found Mr.
O’Connor to be disabled, there was no procedural error.
For the foregoing reasons, the final decision of the Board is affirmed.
Each party shall bear its own costs.
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