Case: 21-1717 Document: 27 Page: 1 Filed: 11/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHY J. COURTNEY,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2021-1717
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-844E-20-0850-I-1.
______________________
Decided: November 10, 2021
______________________
KATHY J. COURTNEY, Raleigh, NC, pro se.
EBONIE I. BRANCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, MARTIN F. HOCKEY, JR., TARA K. HOGAN.
______________________
Before NEWMAN, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
Case: 21-1717 Document: 27 Page: 2 Filed: 11/10/2021
2 COURTNEY v. OPM
Kathy Courtney seeks review of a decision by the Merit
Systems Protection Board (“Board”) affirming a decision by
the Office of Personnel Management (“OPM”) denying her
application for disability retirement under the Federal Em-
ployees Retirement System (“FERS”). The Board, in re-
viewing OPM’s decision, agreed that Ms. Courtney had not
met one of the requirements for disability retirement: that
the applicant’s disability makes it impossible for the appli-
cant to render useful and efficient service. As explained
below, we affirm.
BACKGROUND
Ms. Courtney was employed by the Equal Employment
Opportunity Commission (“EEOC”) as an Equal Oppor-
tunity Investigator. She was removed from her federal em-
ployment effective December 7, 2019. Removal was
premised on a charge of being absent without leave
(“AWOL”). Ms. Courtney appealed her removal, which the
Board affirmed.
During this time, Ms. Courtney applied to OPM for dis-
ability retirement benefits. She asserted that she suffered
from vision-related ailments, asthma, and diabetes. As a
result of the vision problems, she said, she was unable to
perform her duties, which were all computer-based, and
she had difficulty commuting. In her disability retirement
application, Ms. Courtney also said that she had requested
reasonable accommodations that were not granted. The
agency’s alleged failure to provide these accommodations,
she said, resulted in her missing work and being unable to
perform useful and efficient service.
The agency completed its required materials for the
disability application, including the Supervisor’s State-
ment, Certificate of Reassignment and Accommodation Ef-
forts, and Disability Retirement Application Checklist.
Within those materials, the relevant agency employees in-
dicated that requested reasonable accommodations had
been provided and that Ms. Courtney’s performance even
Case: 21-1717 Document: 27 Page: 3 Filed: 11/10/2021
COURTNEY v. OPM 3
with her alleged disability “was not less than fully success-
ful” (even if her conduct was unsatisfactory). App’x 2; see
App’x 24–25. That is, in the agency’s view, her perfor-
mance had not suffered.
In April 2020, OPM denied Ms. Courtney’s disability
retirement application, concluding that she had failed to
establish (1) that her medical condition was incompatible
with useful service or (2) that the agency-provided reason-
able accommodations were ineffective. App’x 2, 57–59.
She filed a request for reconsideration (and additional evi-
dence, as allowed), which OPM denied on August 3, 2020.
App’x 23–25.
In September 2020, Ms. Courtney appealed OPM’s de-
cision to the Board. App’x 3. The administrative judge as-
signed to the case concluded that although Ms. Courtney
met some of the requirements for disability retirement, she
had not established that she was unable “to render useful
and efficient service” in light of her disability—a require-
ment of the relevant statute. App’x 11; 5 U.S.C.
§ 8451(a)(1)(B). The administrative judge accordingly af-
firmed OPM’s decision, App’x 14, and that affirmance be-
came the final decision of the Board, see App’x 14, 19.
Ms. Courtney next appealed to this court. We have ju-
risdiction over this appeal pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
To be eligible for a disability retirement annuity under
FERS, an employee must (1) have completed at least 18
months of creditable civilian service; (2) be unable, because
of disease or injury, to render useful and efficient service in
her position; and (3) not have declined a reasonable offer of
reassignment to a vacant position. 5 U.S.C. § 8451(a);
5 C.F.R. § 844.103. The issue on appeal is the second of
these requirements: whether Ms. Courtney was unable to
render useful and efficient service in light of her disability.
Case: 21-1717 Document: 27 Page: 4 Filed: 11/10/2021
4 COURTNEY v. OPM
The scope of this court’s ability to review Board deci-
sions is limited. We must affirm the Board’s decision un-
less it is (1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Yates v. MSPB, 145 F.3d 1480, 1483
(Fed. Cir. 1998). Substantial evidence means “such rele-
vant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” McLaughlin v. OPM,
353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsushita
Elec. Indus. Co. v. United States, 750 F.2d 927, 933
(Fed. Cir. 1984)).
This court’s power to review the Board is particularly
limited in cases of denial of disability retirement under
FERS. In such cases, we do not have jurisdiction to review
“the factual underpinnings of physical disability determi-
nations.” Anthony v. OPM, 58 F.3d 620, 626 (Fed. Cir.
1995); see also id. at 624–25 (noting that, with limited ex-
ceptions not relevant here, “OPM’s factual findings and
conclusions on disability may be reviewed only by the
Board . . . and not by this court”); 5 U.S.C. § 8461(d). But
we “may address whether there has been a ‘substantial de-
parture from important procedural rights, a misconstruc-
tion of the governing legislation, or some like error going to
the heart of the administrative determination.’” Anthony,
58 F.3d at 626 (quoting Lindahl v. OPM, 470 U.S. 768, 791
(1985)); see also id. (considering “procedural, legal, or other
fundamental error[s]” as among reviewable grounds). That
is, “we may only address the critical legal errors, if any.”
Vanieken-Ryals v. OPM, 508 F.3d 1034, 1038–39 (Fed. Cir.
2007). Further, we are “limited to reviewing decisions of
the Board based on the record before the deciding official”
and may not consider “evidence that was not part of the
record before the administrative judge.” Mueller v. USPS,
76 F.3d 1198, 1201–02 (Fed. Cir. 1996).
Case: 21-1717 Document: 27 Page: 5 Filed: 11/10/2021
COURTNEY v. OPM 5
The Board considered the evidentiary record before it,
reviewed it in detail, and ultimately agreed with OPM that
Ms. Courtney’s position was not supported. The Board first
observed that Ms. Courtney’s “performance was highly suc-
cessful on her last rating of record” before her absence.
App’x 11. Further, her supervisor stated that her perfor-
mance was “not less than fully successful in any critical el-
ement.” App’x 11–12. Indeed, the Board observed that
“there is no evidence that [Ms. Courtney’s] performance
was unsatisfactory.” App’x 13–14. And although she was
absent from work, the Board found that her “absence from
work alone” was “insufficient to support a finding in favor
of disability retirement.” App’x 14.
Ms. Courtney argued that the agency failed to grant
her reasonable accommodations, effectively forcing her out
because of her disability. The Board, however, reviewed
the record and found that each time Ms. Courtney re-
quested reasonable accommodations, they were granted.
App’x 12. Namely, “the agency granted the appellant more
than 12 accommodations to include software to help her
read and write and otherwise work on her computer, hard-
ware for the same purpose, an adjusted work schedule and
telework as appropriate in accordance with the appellant’s
request, as well as breaks when needed.” App’x 12.
Ms. Courtney had argued in particular that she was denied
telework, a device called a “Reader,” and the time to un-
dergo certain software training related to her requested ac-
commodations. App’x 12. But the record showed that
(1) she was approved for telework but had withdrawn her
own request for it, (2) she had not shown that she had re-
quested a Reader and had failed to establish that the
Reader was a necessary accommodation, and (3) the agency
had said that her caseload expectations would be consid-
ered in light of the time it would take to learn the software
and hardware for her accommodations. App’x 12–13. Fi-
nally, the Board concluded that Ms. Courtney had not iden-
tified any “medical record, report, or advice that would
Case: 21-1717 Document: 27 Page: 6 Filed: 11/10/2021
6 COURTNEY v. OPM
suggest [that] she was unable to work on a computer at all
or that the accommodations provided by the agency were
inadequate to perform the duties of her position.” App’x 13.
These determinations are findings of fact that we lack
jurisdiction to consider. Accordingly, we cannot set aside
the Board’s conclusion that Ms. Courtney failed to show
that she was unable “to render useful and efficient service”
in light of her disability. And, although we have considered
Ms. Courtney’s other arguments regarding the Board’s
conclusion, we have identified no “procedural, legal, or
other fundamental error,” Anthony, 58 F.3d at 626, that
would result in setting aside the Board’s decision.
CONCLUSION
We have considered Ms. Courtney’s remaining argu-
ments but find them unpersuasive. 1 For the reasons above,
we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
1 Some of Ms. Courtney’s arguments concern chal-
lenges to the removal itself. This appeal, however, is only
about the denial of disability retirement by OPM. The al-
leged errors surrounding removal were not connected to
OPM’s disability-retirement findings—and Ms. Courtney
has separately appealed her removal. See Courtney
v. EEOC, No. 21-1628, slip op. (Fed. Cir. Nov. 10, 2021).
We have also considered Ms. Courtney’s Memorandum in
Lieu of Oral Argument.