NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3315
JOE L. RUSSELL, JR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: December 13, 2004
__________________________
Before MAYER, Chief Judge, CLEVENGER and LINN, Circuit Judges.
PER CURIAM.
Joe L. Russell, Jr., seeks review of the final decision of the Merit Systems
Protection Board ("Board") affirming the reconsideration decision of the Office of
Personnel Management ("OPM") which denied his application for disability retirement
under the Federal Employee Retirement System ("FERS"). Russell v. Office of Pers.
Mgmt., No. DA844E040089-I-1 (MSPB Mar. 26, 2004). We dismiss.
I
We must affirm a final decision of the Board unless we determine that it is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
5 U.S.C. ' 7703(c) (2000). When reviewing an OPM denial of an application for
disability retirement under FERS, our scope of appellate review is further curtailed. We
are precluded, as a matter of appellate authority, from review of the factual
underpinnings of OPM's decision, and our review is narrowly limited to determination of
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 v. Office of Pers. Mgmt., 470 U.S. 768, 791
(1985) (citation omitted). See also Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626
(Fed. Cir. 1995).
Mr. Russell applied for disability retirement benefits; he had been removed from
his job in the Department of Veterans Affairs because he was physically unable to
perform the essential functions of his position. When a person has been removed due
to physical inability to perform essential functions of the person's job, special rules come
into play that establish procedural rights for the disability applicant. Those special rules
have been set forth in Bruner v. Office of Personnel Management, 996 F.2d 290 (Fed.
Cir. 1993) and Trevan v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir.
1995).
The procedural rules applicable to this case start with the proposition that when
the government removes an employee for physical inability to perform the job, a prima
facie case of disability, for disability retirement purposes, is established. The burden of
coming forward with evidence to the contrary then shifts to OPM, and OPM must come
forward with "enough evidence that a reasonable fact finder could conclude that
[Mr. Russell] did not qualify for disability retirement." Trevan, 69 F.3d at 526 (quoting
Bruner, 996 F.2d at 294). If OPM produces such evidence, then the Board must weigh
the evidence produced by both sides to determine if the applicant has shown
04-3315 2
entitlement to a disability retirement by a preponderance of the evidence. 5 C.F.R.
1201.56(a)(2) (2004).
II
In this case, Mr. Russell timely sought review by the Board of OPM's denial of his
reconsideration petition. The Board carefully considered all the evidence of record in
the procedural steps outlined above. Mr. Russell's removal established a prima facie
case of entitlement to a disability retirement, but the Board determined that the evidence
showed that OPM had overcome the prima facie case with its submissions. Finally, in
considering the evidence on the whole, the Board concluded as a matter of fact that
Mr. Russell had not shown entitlement to a disability retirement by a preponderance of
the evidence.
In his timely petition for review to this court, Mr. Russell argues that the Board
has misunderstood the true facts of his case, which if properly understood would show
his entitlement to a disability retirement. No error of law or of procedure is asserted by
Mr. Russell—only the allegedly wrong assessment of factual matters. Because the
Board followed the correct procedures for this case, and because its decision rests
entirely on findings of fact, we cannot, under Lindahl and Anthony, review the
correctness of the Board's fact findings. As the Supreme Court explained in Lindahl, the
role of this court in disability retirement cases is solely to guard the legal procedure
used to adjudicate the facts of the case. The fact-finders for such cases are in the first
instance OPM, and the final review of the facts underpinning an adverse OPM decision
is by the Board. For want of jurisdiction to review the factual underpinnings of this case,
we must dismiss the petition for review.
04-3315 3