Delorious J. Shipley, Petitioner, v. Office of Personnel Management, Respondent, 831 F.2d 306 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 831 F.2d 306 (Fed. Cir. 1987) September 10, 1987

Before BISSELL, Circuit Judge, JACK R. MILLER, Senior Circuit Judge, and ARCHER, Circuit Judge.


Delorious J. Shipley petitions for review of the decision dated April 28, 1986 of the Merit Systems Protection Board (board), Docket No. SL831L85A0282, denying her motion for attorney fees under 5 U.S.C. § 7701(g) (1) (1982). We affirm.

Petitioner's arguments here are essentially the same as those made before the board and were fully considered by the presiding official in his opinion dated April 28, 1986. He determined that the respondent's action in denying petitioner's application for a disability retirement annuity was not 'clearly without merit,' noting that his reversal of that action 'was based substantially on [petitioner's] subjective evidence that she is unable to perform useful and efficient service.' This evidence was not available to the respondent in making its initial and reconsideration decisions.

Accordingly, we affirm the denial of the petitioner's motion for attorney fees on the basis of the presiding official's opinion.