Torres v. Office of Personnel Management , 318 F. App'x 909 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3094
JARMILLA M. TORRES,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Jarmilla M. Torres, of Jacksonville, North Carolina, pro se.
Michelle R. Milberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant
Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3094
JARMILLA M. TORRES,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Petition for review of the Merit Systems Protection Board in DC831E080317-I-1.
_________________________
DECIDED: April 1, 2009
_________________________
Before MAYER, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
Jarmilla M. Torres petitions for review of the final decision of the Merit Systems
Protection Board (“the Board”), affirming the denial of her application by the Office of
Personnel Management (“the OPM”) for disability retirement under the Civil Service
Retirement System (“the CSRS”). Because the Board correctly determined that Ms.
Torres does not qualify for disability retirement, we affirm.
BACKGROUND
For twenty-seven years, Ms. Torres was employed by the Department of
Defense as a Procurement Technician. Her performance had been fully satisfactory,
and she had no disciplinary record until the events that led to her removal. In March of
2005, Ms. Torres received advance notice of her proposed removal for misconduct,
alleging she had purchased numerous items with a government purchase card and kept
them at her residence for her personal use. Her removal was made effective in May of
2005.
After her removal, Ms. Torres applied for disability retirement under the CSRS,
claiming she was unable to sufficiently perform her duties as a Procurement Technician
because she suffered from depression and anxiety. The OPM denied her application in
2007, upon determining that she failed to show that the misconduct that led to her
removal, her only performance deficiency, was caused by a medical condition. In 2008,
the Board affirmed the decision by the OPM. The Board considered Ms. Torres’s
medical records and employment history, and determined that she did not suffer from a
medical condition that “rendered her unable to perform the duties of her position.”
The Board’s decision became final on November 24, 2008. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The Board has authority to review OPM decisions in CSRS disability cases under
5 U.S.C. § 8347(d)(1). See Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1364 (Fed.
Cir. 2003). In cases regarding disability benefits, our review of the decision 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.” Anthony v. Office of Pers. Mgmt., 58 F.3d
620, 625 (Fed. Cir. 1995) (citing Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 (1985)).
2009-3094 2
Thus, we are without authority to review the “factual underpinnings” of a disability
determination. Id.Although Ms. Torres has asked this court to “review” the Board’s determination,
1
she has not alleged that the Board committed any particular error. To qualify for
disability retirement, Ms. Torres is required to show, in part, that she is “unable,
because of disease or injury, to render useful and efficient service” as a Procurement
Technician. 5 U.S.C. § 8337(a). Ms. Torres was given the opportunity to describe her
disability and present evidence to the Board. In affirming the denial of her application,
the Board fully considered her submissions before making a determination.
Accordingly, we can ascertain no procedural or like error that we have authority to
review. To the extent that Ms. Torres asks this court to review the Board’s factual
determination that her medical condition was not the source of any performance
deficiencies, we have no authority to do so. For these reasons, the final decision of the
Board is affirmed.
No costs.
1
Ms. Torres submitted a letter to this court dated December 5, 2008, from
John Robert Burd, regarding the current condition of her mental health. However, we
may not consider the contents of the letter because it was not presented before the
Board. See McGarigle v. U.S. Postal Serv., 904 F.2d 687, 689 (Fed. Cir. 1990) (“This
court consider[s] only those materials which were before the [Board], except if the
materials submitted serve to correct an omission or misstatement by the [Board].”).
2009-3094 3