Alston v. Office of Personnel Management , 527 F. App'x 872 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NORMAN C. ALSTON, JR.,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3063
______________________
Petition for review of the Merit Systems Protection
Board in No. SF844E120620-I-1
______________________
Decided: June 11, 2013
______________________
NORMAN C. ALSTON, JR., of Fresno, California, pro se.
CARRIE DUNSMORE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and FRANKLIN E. WHITE, JR., Assistant Director.
______________________
Before PROST, BRYSON, and TARANTO, Circuit Judges.
2 NORMAN ALSTON, JR. v. OPM
PER CURIAM.
Norman Alston, Jr. appeals from the decision of the
Merit Systems Protection Board (“Board”) affirming the
decision of the Office of Personnel Management (“OPM”)
denying his application for disability retirement. For the
reasons discussed below, we affirm.
I. BACKGROUND
In September 2010, Mr. Alston applied to OPM for
disability retirement under the Federal Employees’ Re-
tirement System (“FERS”). He claimed that he was
disabled by “stress and panic disorder” that prevented
him from performing the duties of his job with the federal
government. Resp’t App. 38. At the time of his applica-
tion, Mr. Alston was a Revenue Officer for the Internal
Revenue Service and responsible for “collecting delin-
quent tax and securing delinquent returns from taxpay-
ers.” Id. at 21.
Along with his application, Mr. Alston submitted sev-
eral reports from a licensed clinical psychologist, Dr.
King, to substantiate his disability. In those reports, Dr.
King stated that Mr. Alston suffered from “Panic Disor-
der,” was unable to “return to his position as a ‘Revenue
Officer,’” should be “reassigned to an alternative position”
with less stress, and experienced a reduction in symptoms
after taking time off of work. Id. at 23–24.
In April 2011, OPM rejected Mr. Alston’s application
for disability retirement. It determined that he had failed
to provide “objective medical evidence that a disabling
condition exist[ed]” and had failed to respond to its “letter
requesting additional objective evidence.” Id. at 39. In its
view, the reports from Dr. King did not establish that Mr.
Alston’s condition warranted restrictions from performing
the specific “critical or essential duties of [his] position or
restriction from the workplace altogether.” Id. In its
NORMAN ALSTON, JR. v. OPM 3
decision, OPM indicated that Mr. Alston could submit
additional medical documentation to support his claim.
Mr. Alston subsequently petitioned OPM for reconsid-
eration, but it denied his request in May 2012. It noted
that Mr. Alston had not submitted additional medical
documentation to support his claim and determined that
the exiting reports from Dr. King did not provide the
necessary “detailed and objective medical” evidence to
“support his conclusions” regarding the effect and extent
of Mr. Alston’s disability. Id. at 34.
Mr. Alston appealed OPM’s decision to the Board,
which affirmed in November 2012. The administrative
judge for the Board explained that, in order to qualify for
disability retirement, Mr. Alston had to show that he was
“unable, because of disease or injury, to render useful and
efficient service in [his] position.” Id. at 19. After a
detailed review of the record evidence, including Dr.
King’s reports, the administrative judge agreed with OPM
that Mr. Alston had failed to make such a showing by a
preponderance of the evidence. The administrative judge
determined that Mr. Alston did not adequately establish
how his condition rendered him unable to “perform [his]
specific work assignments or to be regular in attendance.”
Id. at 28. That finding was based on the administrative
judge’s conclusion that “[n]either [Mr. Alston] nor Dr.
King addressed in any specific way how [Mr. Alston]’s
condition affected his ability to perform the duties of a
Revenue Officer.” Id. at 27. The administrative judge
also noted that Dr. King failed to “address the degree to
which [Mr. Alston]’s condition can or cannot be controlled,
through medication or other treatment.” Id.
The administrative judge’s decision became final in
December 2012. In February 2013, Mr. Alston filed a
timely appeal with this court.
4 NORMAN ALSTON, JR. v. OPM
II. ANALYSIS
We have jurisdiction over Mr. Alston’s appeal under
28 U.S.C. § 1295(a)(9), but the scope of our review is
limited. Generally, our review of a decision of the Board
is quite narrow. We may set it aside only if: “(1) arbi-
trary, 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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
Because Mr. Alston’s appeal concerns the denial of his
application for disability retirement under FERS, the
scope of our review is further limited to critical errors of
law. “[T]his court 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. Mgmt., 58 F.3d
620, 626 (Fed. Cir. 1995) (reviewing a decision of the
Board affirming OPM’s denial of a request for disability
retirement under FERS) (quoting Lindahl v. Office of
Pers. Mgmt., 470 U.S. 768, 791 (1985)). Accordingly, “we
may only address the critical legal errors, if any, commit-
ted by the [Board] in reviewing OPM’s decision.”
Vanieken-Ryals v. Office of Pers. Mgmt., 508 F.3d 1034,
1038 (Fed. Cir. 2007) (reviewing a decision of the Board
affirming OPM’s denial of disability retirement under the
Civil Service Retirement System (“CSRS”)); see Anthony,
58 F.3d at 626–27 (holding that the same standard of
review applies to Board decisions concerning disability
retirement under CSRS and FERS).
On appeal, Mr. Alston has not shown that the Board
committed any critical legal error in denying his request
NORMAN ALSTON, JR. v. OPM 5
for disability retirement. Although he plainly indicated in
his informal brief that “No,” the Board did not “apply the
wrong law,” he stated as a ground for relief that “no one
ever contacted the doctor during the case.” Resp’t App. 1.
That could be construed as an assertion of critical legal
error. See Bruner v. Office of Pers. Mgmt., 996 F.2d 290,
292 (Fed. Cir. 1993) (stating that a challenge to the bur-
den of proof for establishing entitlement to disability
retirement can concern an important procedural right
that may have substantive consequences). However, even
if construed that way, the argument is without merit. Mr.
Alston, not the Board or OPM, bore the burden to contact
his doctor and gather evidence to prove his eligibility for
disability retirement. See id. (holding that applicants
bear the burden to prove eligibility for disability retire-
ment).
Mr. Alston’s only other assertion of error is a chal-
lenge to the Board’s weighing of the facts in this case,
which we may not disturb on appeal. Specifically, he
argues that the Board was “not truly considering what
mental health does to a person.” Resp’t App. 2. Clearly,
Mr. Alston believes that the Board improperly weighed
the facts in his case. See Davis v. Office of Pers. Mgmt.,
470 F.3d 1059, 1060–61 (Fed. Cir. 2006) (“[Petitioner’s]
theory is that the Board improperly failed to consider the
totality of the evidence . . . . [H]er arguments are, in
reality, challenges to the factual underpinnings of the
Board’s determination.”). But that dispute is outside the
scope of our review. Anthony, 58 F.3d at 626 (holding that
we are precluded from “reviewing the factual underpin-
nings of physical disability determinations”).
Because Mr. Alston has not shown any legal error in
the Board’s decision and we may not review the factual
6 NORMAN ALSTON, JR. v. OPM
underpinnings of the denial of his application for disabil-
ity retirement, we must affirm. 1
AFFIRMED
COSTS
Each party shall bear its own costs.
1 Mr. Alston accompanied his initial notice of ap-
peal to this court with a letter from Dr. King dated Janu-
ary 14, 2013. That letter was never presented to the
Board as evidence. Indeed, it was written after the ad-
ministrative judge’s decision became final. Therefore, the
letter is not part of the record. We note, however, that it
addresses only factual matters outside our scope of re-
view.