                       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
                                           05-3360

                                    SUSAN D. STARKS,

                                                                       Petitioner,

                                              v.

                        OFFICE OF PERSONNEL MANAGEMENT,

                                                                       Respondent.

                           ___________________________

                             DECIDED: February 13, 2006
                           ___________________________


Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.


      Petitioner Susan D. Starks (“Starks”) petitions for review of the final decision of

the Merit Systems Protection Board (“Board”), affirming the Office of Personnel

Management’s (“OPM”) denial of Starks’ request for disability retirement. We affirm.

                                    BACKGROUND

      Starks suffered shoulder and wrist injuries in 1996 while employed by the United

States Postal Service (“USPS”) as a letter carrier. After medical treatment, in 1998

Starks accepted the position of Rehabilitation Letter Carrier (“RLC”), which had duties

consistent with her medical restrictions. She continued in that position until she stopped

reporting to work on December 18, 1999.            Starks applied for disability retirement

pursuant to the Federal Employee Retirement System (“FERS”) on March 16, 2000, and
OPM denied the application, concluding that Starks’ medical conditions did not qualify

her for disability retirement. Starks was removed due to disability effective May 7, 2001.

      Starks appealed OPM’s denial of her disability retirement application to the

Board, and the Administrative Judge (“AJ”) affirmed on June 18, 2002. The full Board

remanded to OPM with instructions to determine whether the RLC position was an

accommodation in the light of Bracey v. Office of Personnel Management., 236 F.3d

1356 (Fed. Cir. 2001), and Ancheta v. Office of Personnel Management., 95 M.S.P.R.

343 (2003). OPM again denied Starks’ application, and the AJ affirmed. The AJ agreed

with OPM that the RLC position was an accommodation of Starks’ medical restrictions

within her position as “City Carrier” under 5 U.S.C. § 8451, 5 C.F.R. § 844.103, and

Bracey, because it allowed her to perform the “essential elements” of the “City Carrier”

position. Because Starks was removed on the basis of disability, the AJ applied the

presumption of entitlement to disability retirement established in Bruner v. Office of

Personnel Management., 996 F.2d 290, 294 (Fed. Cir. 1993), but nevertheless

concluded that Starks was ineligible. The AJ found that the government rebutted the

Bruner presumption by producing sufficient evidence that, as accommodated, Starks’

medical conditions did not prevent her from performing her duties. The AJ’s decision

became the final decision of the Board when the full Board denied review on July 20,

2005. Starks timely appealed to this court, and we have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




                                     DISCUSSION




05-3360                                    2
         In general, we affirm the Board’s decision unless it was arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule or regulation; or unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir.

1998).    However, in disability retirement appeals, we lack jurisdiction to review the

factual underpinnings of disability determinations and are limited to evaluating whether

such determinations involved “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.” Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791

(1985) (internal quotation marks omitted); Anthony v. Office of Pers. Mgmt., 58 F.3d

620, 626 (Fed. Cir. 1995).

         Starks argues that the Board incorrectly interpreted the statute under Bracey and

Ancheta. In Bracey, 236 F.3d at 1360-61, we held that accommodation bars disability

retirement under the Civil Service Retirement System only if it allows performance of the

“critical or essential elements” of the employee’s position. In Ancheta, 95 M.S.P.R. at

349-54, the Board held that the same rule governed under USPS regulations. We

conclude that the Board did not misinterpret the statute in holding that the RLC position

was a valid accomodation because it allowed Starks to perform the “essential elements”

of her “City Carrier” position -- casing and delivering mail -- and that Starks was thus

ineligible for disability retirement.

         Starks’ other contentions, including her arguments that she was unable to

perform the essential duties of her “City Carrier” position even with the accommodation

and that she was denied due process because she was not allowed to present certain



05-3360                                      3
evidence regarding her psychological conditions, are, in substance, challenges to the

factual underpinnings of the Board’s disability determination. We are without jurisdiction

to review the Board’s factual determinations. See Smith v. Office of Pers. Mgmt., 784

F.2d 397, 399-400 (Fed. Cir. 1986).

      For the foregoing reasons, the Board’s decision is affirmed.

      No costs.




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