                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                     2006-3334



                               DONALD G. STANLEY,

                                                           Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                           Respondent.



      Donald G. Stanley, of Wichita, Kansas, pro se.

       Lauren S. Moore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director,
and Franklin E. White, Jr., Assistant Director. Of counsel was Joseph A. Pixley.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                        2006-3334




                                 DONALD G. STANLEY,

                                                                Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                                Respondent.



                            __________________________

                            DECIDED: January 30, 2007
                            __________________________



Before NEWMAN, RADER, and PROST, Circuit Judges.

PER CURIAM.




       Donald G. Stanley petitions for review of the decision of the Merit Systems

Protection Board, Docket No. DE844E060065-I-1, affirming the reconsideration decision of

the Office of Personnel Management that he is not entitled to a disability retirement annuity

under the Federal Employees' Retirement System. We affirm the decision of the Board.
                                      BACKGROUND

       Mr. Stanley was removed from his position of Distribution Clerk with the United

States Postal Service in Wichita, Kansas, for stealing prescription medication from the

mails. Mr. Stanley then applied to OPM for a disability retirement annuity, alleging that he

could not perform the duties of his position because of a separated shoulder, carpal tunnel

syndrome, lumbar fusion, arthritis, glaucoma, pins broken in his hip due to surgical repair,

and a broken ankle that had failed to heal properly. OPM denied the application. Mr.

Stanley appealed to the Board, which found that he had not shown that he was disabled at

the time of his removal for misconduct. This appeal followed.

                                       DISCUSSION

       To establish eligibility for a FERS disability retirement annuity Mr. Stanley had to

demonstrate, inter alia, that he was unable, because of disease or injury, to render useful

and efficient service in the position he last occupied, and that he could not have been

reasonably accommodated or reassigned by his agency. See 5 U.S.C. §8451(a)(1)(B); 5

C.F.R. §844.103. The Board reviewed the medical evidence of record as well as the

testimony of the witnesses, and concluded that Mr. Stanley had not established entitlement

to an annuity based on disability.

       Mr. Stanley challenges these findings, stating that the Board failed to take into

account the effect of his medications on his ability to do his job. He states, "The FACT that

was incorrectly decided is that absent the abuse of the medications, I was completely

unable to function in my Postal duties." Mr. Stanley states that the Board gave inadequate

weight to the effect that his medication abuse had on his disability.




2006-3334                                    2
       The Federal Circuit is precluded from reviewing the factual determinations that

underlie disability determinations, except for matters of law or procedure that affect

fundamental principles. In Lindahl v. Office of Personnel Management, 470 U.S. 768, 791

(1985), the Supreme Court held that "while the factual underpinnings of §8347 disability

determinations may not be judicially reviewed, such review is available 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, 397 F.2d

295, 297 (Ct. Cl. 1968)). The Lindahl standard applies to FERS disability cases. See

Anthony v. Office of Personnel Management, 58 F.3d 620, 626 (Fed. Cir. 1995) ("[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."'") (quoting

Lindahl).

       Mr. Stanley's allegations relate solely to factual findings asserted to have been made

in error by OPM and the Board in evaluating his disability claim. These findings are not

within the scope of review permitted by Lindahl and ensuing precedent. On this basis, the

decision of the Board must be affirmed.

       No costs.




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