NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3301
JANNIE S. DAVIS,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: December 8, 2006
__________________________
Before MAYER and PROST, Circuit Judges, and WHYTE, District Judge.∗
PER CURIAM.
Jannie S. Davis petitions for review of the final order of the Merit Systems
Protection Board (“Board”) sustaining the decision of the Office of Personnel
Management’s (“OPM”) denial of Ms. Davis’s request for disability retirement. We
affirm.
BACKGROUND
Ms. Davis was employed as a Food Inspector with the Department of Agriculture.
On April 1, 2004, she applied to OPM for disability retirement. She stated in her
∗
Honorable Ronald M. Whyte, District Judge, United States District Court
for the Northern District of California, sitting by designation.
application that she had been diagnosed with “Multiple Chemical Sensitivity.”
Specifically, she alleged that her exposure to the sanitizing chemicals used in her
workplace had led to recurring respiratory problems. OPM denied her application on
September 3, 2004. She requested reconsideration and OPM affirmed its initial denial
of her application on December 29, 2004. OPM’s decision letter informed her of her
appeal rights.
Ms. Davis filed an appeal with the Board. In his initial decision, the administrative
judge affirmed OPM’s denial of her application. Davis v. Office of Pers. Mgmt., No.
AT844E050322-I-1 (M.S.P.B. May 27, 2005). The administrative judge found that Ms.
Davis “failed to show by preponderant evidence that her medical conditions are
disabling or that they render her unable to perform the duties of her position.” Id., slip
op. at 6. Ms. Davis petitioned for full board review of the administrative judge’s
decision. The Board denied the petition for review, making the administrative judge’s
initial decision the final decision of the Board. Davis v. Office of Pers. Mgmt., No.
AT844E050322-I-1, slip op. at 2 (M.S.P.B. May 8, 2006). One member of the full board
dissented. Ms. Davis timely petitioned this court for review of the Board’s final decision.
DISCUSSION
This court has jurisdiction to review a final decision of the Board under 28 U.S.C.
§ 1295(a)(9). Our review of a Board decision that affirms OPM’s denial of a disability
retirement application is extremely limited. We cannot review the factual underpinnings
of a disability determination. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985);
see also Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995). Thus, we
cannot revisit the facts of this case to determine whether the Board’s decision was
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correct. Our review is limited to determining “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.’”
Lindahl, 470 U.S. at 791. We see no such error here.
The majority of Ms. Davis’s arguments relate to whether the Board properly
assessed the evidence and determined that she was not disabled. Her theory is that
the Board improperly failed to consider the totality of the evidence, thus constituting an
error that she characterizes as “a substantial departure from important procedural
rights” and “a misconstruction of the governing legislation going to the heart of the
administrative process.” But her arguments are, in reality, challenges to the factual
underpinnings of the Board’s determination. Under Lindahl, we cannot entertain these
arguments. See Smith v. Office of Pers. Mgmt., 784 F.2d 397, 400 (“The sufficiency of
the evidentiary support for the Board’s decision ordinarily would not be viewed as a
question of procedural rights or construction of legislation, or analogous or comparable
to those questions.”).
Ms. Davis also asserts that the administrative judge applied the wrong law when
he cited to the Board’s decision in Fisher v. Office of Pers. Mgmt., 85 M.S.P.R. 30, 33-
35 (M.S.P.B. 1999). She argues that the facts in Fisher are distinguishable from the
facts in her case. But the administrative judge cited Fisher merely for the proposition
that Ms. Davis had the burden to prove her entitlement to disability retirement by a
preponderance of the evidence. Thus, we see no error in the administrative judge’s
citation of Fisher.
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Finally, Ms. Davis makes a number of arguments related to certain of the
administrative judge’s evidentiary rulings. She asserts that the administrative judge
erred in declining to admit three of her exhibits into evidence for lack of relevance. She
also asserts that the administrative judge erred in allowing OPM to question her about
whether the Department of Agriculture attempted to accommodate her medical
condition. Evidentiary rulings, however, are matters within the administrative judge’s
discretion. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). We
see no abuse of discretion in this case, nor do we see any procedural error of the kind
described in Lindahl.
For the foregoing reasons, we affirm the decision of the Board.
No costs.
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