                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-3132

                                 MARIE C. MAPLES,

                                                          Petitioner,

                                          v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                          Respondent.


      Marie C. Maples, of Pell City, Alabama, pro se.

       David M. Hibey, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director.

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                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2009-3132


                                  MARIE C. MAPLES,

                                                            Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.

             Petition for review of the Merit Systems Protection Board in
             AT844E080694-I-1.
                           ____________________________

                            DECIDED: October 13, 2009
                          ____________________________


Before LOURIE, LINN, and MOORE, Circuit Judges.

PER CURIAM.

      Marie Maples appeals from the final decision of the Merit Systems Protection

Board (the “Board”) affirming the Office of Personnel Management’s (“OPM’s”) denial of

her application for disability retirement. Maples v. Office of Pers. Mgmt., AT-844E-08-

0694-I-1, 2008 MSPB Lexis 4449 (M.S.P.B. Oct. 18, 2008) (“Initial Decision”); Maples v.

Office of Pers. Mgmt., 110 M.S.P.R. 497 (Jan. 16, 2009) (“Final Order”). Because the

Board’s decision that Maples was not “disabled” for purposes of disability retirement

benefits is supported by substantial evidence, we affirm.
                                      BACKGROUND

       Maples is employed as a secretary for the Department of Veterans Affairs,

Southeastern Blind Rehabilitation Center in Birmingham, Alabama. She suffers from

cytomegalovirus infection and sought disability retirement benefits based on her

condition. OPM denied her application for disability retirement based on a failure to

show that her cytomegalovirus condition had resulted in a deficiency in performance,

conduct, or attendance, or, if there was no such deficiency, that the condition was

incompatible with either useful or efficient service or retention in the position.

       Maples appealed OPM’s decision to the Board. In an initial decision issued on

October 17, 2008, the administrative judge (“AJ”) affirmed OPM’s decision. The AJ

found that, although Maples had presented medical evidence showing that she suffers

from cytomegalovirus infection, she remained employed, and her performance and

attendance had been satisfactory. Indeed, according to the AJ, Maples’ most recent

performance appraisal had been “excellent,” the agency’s second highest possible

rating in a five-tier rating system. The AJ further reasoned that Maples had not proven

that her cytomegalovirus condition rendered her unable to perform useful and efficient

service in her position, given that her essential duties were performed while sitting at a

desk. The AJ added that Maples’ personal considerations, such as difficulty commuting

and performing household chores, were irrelevant to whether she could perform

secretarial duties. If need be, according to the AJ, she could request assistance in

processing the mail if walking the required distances posed undue difficulty. Thus,

according to the AJ, Maples had shown neither a deficiency in her performance or




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attendance, nor new medical evidence that her condition was incompatible with either

useful and efficient service or retention in her position.

       The AJ also found that, although Maples had recently received an increased VA

disability rating showing that she could only walk approximately 150 yards and stand for

approximately five minutes, such a limitation would not necessarily render her unable to

perform her secretarial duties. Thus, Maples’ VA disability rating, which bears on her

military service, was found insufficient to establish that she was entitled to disability

benefits.

       Maples petitioned for review of the AJ’s decision.      In a decision issued on

January 16, 2009, the Board denied the petition, concluding that there was no new,

previously unavailable evidence and that the AJ made no error in law or regulation that

affected the outcome. Thus, the AJ’s initial decision became final.

       Maples timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                       DISCUSSION

       The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with 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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” McEntee v. Merit

Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quotation marks omitted). The



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scope of our review of disability determinations is further limited by 5 U.S.C. § 8347(c),

which states that OPM’s determinations as to disability “are final and conclusive and are

not subject to review” except by the Board. Thus, we have no jurisdiction to review the

“factual underpinnings” of disability determinations; we can only correct “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); see Anthony v. Office of

Pers. Mgmt., 58 F.3d 620, 625 (Fed. Cir. 1995).

      Maples argues that her performance has in fact been deficient, as she received

only an “excellent” performance rating, rather than an “outstanding” rating. Further,

according to Maples, she has not been allowed to work from home, exacerbating her

condition. She also argues that she presented a preponderance of objective medical

evidence, including her record of sick leave, to prove her disability, and that the Board

did not adequately consider the evidence.

      The government responds that the Board properly considered all of the facts

surrounding Maples’ appeal, and she does not qualify for disability retirement benefits

because she has received excellent performance ratings and satisfactory attendance

ratings. Further, according to the government, even though Maples’ performance rating

was “excellent” instead of “outstanding,” 5 U.S.C. § 8451(b) requires that she be unable

to render “useful and efficient service” to qualify as “disabled,” which she has not

proven. The government also responds that, despite sufficient evidence that Maples

suffers from cytomegalovirus infection, she did not present sufficient evidence that her

condition has resulted in an inability to perform her job, so the Board correctly



2009-3132
                                        -4-
determined that Maples had not set forth any “objective diagnostic or treatment

evidence pertaining to her claimed [cytomegalovirus infection].”

      We agree with the government that Maples has set forth no basis for disturbing

the Board’s decision.    An employee is entitled to disability retirement when she is

“disabled for useful and efficient service . . . because of disease or injury.” 5 U.S.C.

§ 8451(b). OPM has interpreted the “disabled” condition to require that the employee

“bec[a]me disabled because of a medical condition, resulting in a deficiency in

performance, conduct, or attendance, or if there is no such deficiency, the disabling

medical condition must be incompatible with either useful and efficient service or

retention in the position.” 5 C.F.R. § 844.103(a)(2). The Board’s decision that Maples

was not “disabled” for purposes of disability retirement benefits is supported by

substantial evidence. Although Maples did not receive the highest possible rating, her

rating of “excellent,” combined with her satisfactory attendance record, supports the

Board’s determination that there was no deficiency in Maples’ performance or

attendance. Further, Maples did not provide, from the record that was before the Board,

documentation that her cytomegalovirus condition is “incompatible with either useful and

efficient service or retention in the position” of secretary. Moreover, as indicated, we

have no jurisdiction to review the factual underpinnings of a disability determination, and

we do not find “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, 470 U.S. at 791.

      On April 21, 2009, while her case was on appeal, Maples moved this court to

supplement the record with new medical evidence in order to establish that her



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                                        -5-
cytomegalovirus condition is incompatible with her service in her position. Because this

is a court of appeals, and our review is generally limited to the evidence that was

available to the Board when it made its decision, we must deny Maples’ motion. In

general, we do not consider new evidence that was not before the court or agency from

which an appeal was taken. See Moore U.S.A., Inc. v. Standard Register Co., 229 F.3d

1091, 1116 (Fed. Cir. 2000); Fed. R. App. P. 10(a).        Further, especially given the

statutory limit on our jurisdiction over disability determinations, we cannot second-guess

the Board’s findings, with or without the new evidence that Maples submits. Only the

Board has the power to weigh such evidence.

      We note, however, that the Board has authority to reopen its own cases and

consider new evidence. See 5 C.F.R. § 1201.118. Indeed, the Board is expressly

authorized to reopen a case if Maples were to establish that “[n]ew and material

evidence is available that, despite due diligence, was not available when the record

closed.” 5 C.F.R. § 1201.115(d)(1); see Brenneman v. Office of Pers. Mgmt., 439 F.3d

1325, 1328 (Fed. Cir. 2006) (“When documentary materials are asserted to be new and

material evidence, the information contained in the documents, not just the documents

themselves, must have been unavailable despite due diligence when the record closed.”

(quotation marks omitted)). Maples’ medical reports are dated April 2009, after the

Board’s record was closed. Thus, the proper vehicle for Maples to present her new

medical evidence is by filing a motion to reopen at the Board.

      Accordingly, we affirm the Board’s decision and deny Maples’ motion to submit

new medical evidence.




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                                        -6-
                 COSTS

     No costs.




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                 -7-
