Katherine Britt, Petitioner, v. Office of Personnel Management, Respondent, 846 F.2d 77 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 846 F.2d 77 (Fed. Cir. 1988) March 14, 1988

Before MARKEY, Chief Judge, and FRIEDMAN and DAVIS, Circuit Judges.

PER CURIAM.

DECISION

The final decision of the Merit Systems Protection Board (Board), No. CH08318710345, affirming the Office of Personnel Management's (OPM's) reconsideration decision that Katherine Britt (Britt) was no longer entitled to disability retirement annuity, is affirmed.

OPINION* 

This court does not have jurisdiction to review Britt's argument that OPM's May 21, 1985 letter to continue annuity was correct, while its letter the next day denying annuity (purportedly correcting the "mistake" made by the earlier letter) incorrectly evaluated the medical evidence. Choosing between those letters would involve reviewing the factual underpinnings of the board's decision. That we cannot do. Smith v. Office of Personnel Management, 784 F.2d 397, 400 (Fed. Cir. 1986); see Lindahl v. Office of Personnel Management, 470 U.S. 768, 791 (1985).

Britt's argument that the OPM and MSPB failed to follow the applicable regulations is without merit. The decisions conform to the standard found in 5 C.F.R. Sec. 1201.56 and to the rule that in determining "continuing disability" the burden of proof is on the annuitant. See Prestien v. Office of Personnel Management, 8 M.S.P.R. 698 (1981); 5 U.S.C. § 8347 (1982).

 *

We do not consider on this appeal Britt's arguments concerning reinstatement of her annuity. In this case OPM has not yet issued a decision on reinstatement subject to review. 5 U.S.C. § 7703(b) (1) (1987). However, if Britt is correct that she has been waiting two years for that decision, she may wish to petition the MSPB. See Money v. Office of Personnel Management, 811 F.2d 1474, 1476 (Fed. Cir. 1987); 5 U.S.C. § 8347 (1987)

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