Ronald D. Mycka, Petitioner, v. Office of Personnel Management, Respondent, 846 F.2d 78 (Fed. Cir. 1988)

DECISION

The decision of the Merit Systems Protection Board in docket No. PH831L8710506, affirming the reconsideration decision of the Office of Personnel Management (OPM) that denied the petitioner's application for disability retirement benefits, is affirmed.

OPINION

After hearing, the Board's administrative judge affirmed OPM's denial of the petitioner's application for disability retirement. The petitioner contended that a back problem prevented him from performing his duties as a systems accountant. In a detailed opinion, the administrative judge reviewed the evidence in the administrative record that related to the petitioner's claim of disability and concluded that "the appellant has not met his burden of proving that he was disabled for useful and efficient service in his position of systems accountant."

Before this court, the petitioner mainly argues that the evidence established his disability. Under Lindahl v. OPM, 470 U.S. 768 (1985), however, "the factual underpinnings of Sec. 8347 disability determinations may not be judicially reviewed, such review is available" only "to determine 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." ' " Id. at 791 (quoting Scroggins v. United States, 184 Ct. Cl. at 534, 397 F.2d, at 297). Thus, we have no authority to consider the petitioner's claim that the evidence in the record shows that he was disabled, since that inquiry would require judicial review of the "factual underpinnings" of the Board's disability determination in this case.

The petitioner argues that there has been "a substantial departure from important procedural rights" because OPM did not transmit to the Board all the evidence upon which it based its determination that the petitioner was not disabled. At oral argument, however, the government stated that OPM had forwarded to the Board the complete file upon which OPM decided this case. The petitioner's argument appears to be that OPM should have forwarded to the Board other material, such as his personnel file, that allegedly also contained evidence relating to his physical condition. OPM, however, did not rely upon that material in finding the petitioner not disabled. The petitioner has not shown that the Board did not receive the entire record upon which OPM based its decision.