Joseph M. Lee, Petitioner, v. Office of Personnel Management, Respondent, 762 F.2d 987 (Fed. Cir. 1985)

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U.S. Court of Appeals for the Federal Circuit - 762 F.2d 987 (Fed. Cir. 1985)

May 22, 1985

Joseph M. Lee, pro se.

William J. Snider, Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and M. Susan Burnett, Asst. Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent.

Thomas F. Moyer, Asst. Gen. Counsel, Washington, D.C., of counsel.

John Howard, Office of Gen. Counsel, Office of Personnel Management, of counsel.

Before BENNETT, Circuit Judge, NICHOLS, Senior Circuit Judge, and NIES, Circuit Judge.

NIES, Circuit Judge.

Joseph M. Lee appeals the decision of the Merit Systems Protection Board (board), Case No. AT831L8410101, 22 M.S.P.R. 654 sustaining Office of Personnel Management's denial of his claim for disability retirement based on hearing loss. We dismiss for lack of jurisdiction over the sole issue presented by the appeal in this court.


On the basis of a hearing impairment, Mr. Lee applied for disability retirement from his position as a Claims Representative with the Social Security Administration. The Office of Personnel Management disallowed Mr. Lee's application because he had not shown, inter alia, "that the medical condition is incompatible with either useful service or retention in the position." That decision was sustained following reconsideration. Mr. Lee next appealed to the board which, following a hearing, sustained OPM's decision. The board stated that "appellant has a hearing loss which is not so severe as to render him unable to perform his job. Thus, he is not disabled within the meaning of 5 U.S.C. 8337(a)."On appeal to this court, Mr. Lee seeks review of the disability determination, urging that we reevaluate the medical reports and other information of record concerning hearing requirements of his job. In short, all of Mr. Lee's arguments are directed to the fact and extent of the disability itself, based upon the evidence of record.


The Supreme Court has recently ruled that the factual underpinnings of 5 U.S.C. § 8347(c) disability determinations may not be judicially reviewed. Lindahl v. Office of Personnel Management, --- U.S. ----, 105 S. Ct. 1620, 1633, 84 L. Ed. 2d 674 (1985). Our jurisdiction to review decisions denying applications for disability retirement, except as provided in 5 U.S.C. § 8347(d) (2) not here applicable, 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.' " Scroggins v. United States, 397 F.2d 295, 297, 184 Ct. Cl. 530, cert. denied, 393 U.S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 (1968), quoted in Lindahl, 105 S. Ct. at 1633. The issue raised in Mr. Lee's appeal to this court, namely, that his hearing impairment is so extensive as to prevent him from satisfactorily performing his job, does not fall within the bounds of this court's jurisdiction as above defined. Accordingly, the appeal is dismissed. See Smith v. Office of Personnel Management, 760 F.2d 244 (Fed. Cir. 1985).