                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit

                                         05-3341

                                GEORGE K. SZEJNER,

                                                        Petitioner,
                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                 Respondent.
                           ___________________________

                           DECIDED: February 13, 2006
                           ___________________________

Before MAYER, RADER, and PROST, Circuit Judges.

RADER, Circuit Judge.


       The Merit Systems Protection Board (Board) affirmed the Office of Personnel

Management’s (OPM’s) reconsideration decision denying Mr. Szejner’s application for

disability retirement benefits under the Federal Employees Retirement System (FERS).

Szejner v. Office of Pers. Mgmt., No. PH-844E-04-0208-I-1 (M.S.P.B. July 18, 2005)

(Board Opinion). This court affirms.

                                            I.

       Mr. Szejner was a Community Supervision Officer for the Court Services and

Offender Supervision Agency for the District of Columbia (CSOSA) until his removal

from service on May 31, 2002. In August 2003, Mr. Szejner filed an application for

disability retirement based on a diagnosis of atrial fibrillation and overactive thyroid in
February 2003. OPM denied his application, finding that Mr. Szejner had not proven the

link between his medical condition and the documented deficiencies that triggered his

removal. OPM further found that Mr. Szejner was ineligible for disability retirement

because he was no longer a federal employee at the time his disability was diagnosed

in February 2003. Mr. Szejner appealed OPM’s decision to the Board. In an initial

decision, the administrative judge affirmed OPM’s denial, finding that Mr. Szejner did

not to prove he was disabled when employed by CSOSA.

       On petition for review, Mr. Szejner claimed that he was denied due process

because OPM did not respond to his discovery requests or serve him with memoranda.

Mr. Szejner also argued that because the Social Security Administration (SSA) had

approved his claim for social security disability benefits, he was entitled to FERS

disability benefits. The Board affirmed the initial decision, but modified that decision to

address Mr. Szejner’s social security disability benefits arguments.             The Board

concluded that the SSA’s decision was based on a finding of disability subsequent to

Mr. Szejner’s employment and so was not relevant to his FERS claim. Board Decision,

slip op. at 8. Mr. Szejner timely filed a petition for review with this court.

                                              II.

       This court possesses limited authority to review a Board decision. The Board’s

decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law; (2) obtained without procedures required

by law, rule or regulation having been followed; or (3) unsupported by substantial

evidence. 5 U.S.C. § 7703 (c) (2000); see Briggs v. Merit Sys. Protection Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003). Moreover, when OPM denies an application for disability




05-3341                                        2
retirement under FERS, this court cannot review the factual underpinnings of that

decision. Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791 (1985). Instead, this

court’s review 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.” Id. (citation and quotes

omitted). Much of Mr. Szejner’s petition to this court addresses the factual basis for the

denial of his application. This court cannot review the factual underpinnings of OPM’s

denial.

          Mr. Szejner does raise two issues for this court’s review. Mr. Szejner asserts

that the Board erred because: (1) it incorrectly assumed that that an employee must

both become disabled and apply for disability benefits while employed in a position

subject to FERS; and (2) it incorrectly decided that Mr. Szejner had not filed a motion to

compel discovery.

          First, the Board did not assume that an application for disability benefits must be

filed while the applicant is still employed. OPM has already conceded that Mr. Szejner’s

application was timely. Rather, the Board stated: “To be entitled to FERS disability

retirement . . . the appellant must have become disabled while employed in a position

subject to FERS.” Board Decision, slip op. at 7 (citing 5 U.S.C. § 8451(a)(1); 5 C.F.R.

§ 844.103(a)(2)).       The Board then explained that because the SSA disability

determination was for a time period beginning after Mr. Szejner’s removal, it did not

follow that OPM’s denial decision was incorrect.

          Second, the Board’s decision is clear on the discovery issue. It did not assert

that Mr. Szejner had not filed any motion to compel discovery, but that the motion to




05-3341                                        3
compel discovery he did file was directed to information relevant to his removal, and not

relevant to his application for disability benefits. See Board Decision, slip op. at 4.

Inferring much from Mr. Szerjner’s petition to this court, there appears to be another

discovery request that he made for information that may have been material to this

FERS disability application. Regarding that information, for which no motion to compel

discovery was apparently filed, the Board concluded that Mr. Szejner “has not

demonstrated that he was prejudiced by OPM’s alleged failure to respond to his

discovery requests, as he has not shown that the information sought would change the

outcome of this appeal.”        Id.   This court sees no error in the Board’s analysis.

Moreover, Mr. Szejner does not explain in his petition to this court what information he

was seeking, or what it might establish.

       Because Mr. Szejner has not demonstrated that 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, the

Board’s decision is affirmed.




05-3341                                       4
