NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
06-3262
LARRY THOMPSON,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
___________________________
DECIDED: December 11, 2006
___________________________
Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit
Judge.
RADER, Circuit Judge.
The Office of Personnel Management (OPM) denied petitioner Larry Thompson’s
disability retirement benefits under the Federal Employees Retirement System (FERS).
The Merit Systems Protection Board (Board) affirmed. Larry Thompson v. Office of
Pers. Mgmt., SF-844E-05-0638-I-1 (M.S.P.B. Apr. 3, 2006) (Final Order) affirming Larry
Thompson v. Office of Pers. Mgmt., SF-844E-05-0638-I-1 (M.S.P.B. Oct. 18, 2005)
(Initial Decision). Because this court does not review factual determinations in disability
retirement cases, Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985), this
court dismisses for lack of jurisdiction.
I.
The Veterans Administration (VA) employed Mr. Thompson for approximately
fifteen years as a social services assistant. Earlier he held positions as a housekeeping
aid, housekeeping aid leader, and health technician with the VA. Two days after Mr.
Thompson voluntarily absented himself from his employment, he applied for disability
benefits, claiming he suffered from post traumatic stress disorder (PTSD) related to his
military service in Viet Nam.
OPM denied his request for disability because he did not meet the applicable
criteria. In particular, Mr. Thompson did not have any notable performance deficiencies
at the time of his voluntary departure from the VA. Further, OPM did not find any
definitive medical evidence indicating that Mr. Thompson was unable to perform his
work duties as a result of his mental illness. Mr. Thompson requested reconsideration.
OPM affirmed its earlier decision on April 25, 2005.
Mr. Thompson appealed OPM's decisions to the Board. The administrative judge
found no evidence in the record from any treating physician specifically describing any
duties that Mr. Thompson was incapable of performing. Initial Decision, slip. op. 5.
Rather, at the time of his retirement, his job performance was satisfactory and his
supervisor had voiced no complaints. Id. While the administrative judge noted Mr.
Thompson’s PTSD diagnosis, the record did not show that Mr. Thompson's mental
condition rendered him incapable of performing his job duties. Id. at 6. Thus, the
administrative judge found that the medical evidence did not support a finding of
disability. Id. The Board affirmed. Final Order, slip. op. 2.
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II.
Section 8461 of Title 5 governs disability retirement appeals such as Mr.
Thompson's. 5 U.S.C. § 8461(d). This court has held that it is "precluded by 5
U.S.C. § 8461(d) from reviewing the factual underpinnings of physical disability
determinations, but may address whether there has been "a substantial departure from
important procedural rights, a misconstruction of the governing legislation, or some like
error 'going to the heart of the administrative determination.'"" Anthony v. Office of Pers.
Mgm., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl, 470 U.S. at 791.) This
standard applies to reviews of disability determinations under the Civil Service
Retirement System (CSRS) as well as the FERS. Id. In Anthony, this court noted that
the Supreme Court in Lindahl preserved "judicial review of factual findings regarding the
mental condition of involuntarily retired employees." 58 F.2d at 625. However as noted
above, Mr. Thompson's departure was voluntary. Thus, this court's review is limited.
Id. at 626.
On appeal, Mr. Thompson argues that the Board did not consider a letter from a
specific physician because it was mailed to the wrong place. He further suggested that
this evidence would have affected the outcome of the Board’s determination.
However, this court cannot consider new evidence that was not before the Board. Cruz
v. Dep’t of Navy, 934 F.2d 1240, 1245 n.6 (Fed. Cir. 1991). The remainder of Mr.
Thompson's arguments appear to challenge the correctness of the Board's factual
determinations of nondisability. This court cannot discern that the Board made any
legal or procedural errors. This court lacks jurisdiction to review the Board's factual
determinations. Baker v. Office of Pers. Mgmt., 782 F.2d 993, 994 (Fed. Cir. 1986)
06-3262 3
("[Petitioner] wants us to review the record to determine whether there was substantial
evidence supporting the MSPB nondisability determination. That, of course, we have
no jurisdiction to do."). As such, this court must dismiss the petition for lack of
jurisdiction.
06-3262 4