                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                     2006-3267


                              THOMAS F. O’CONNOR,

                                                          Petitioner,

                                         v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                          Respondent.


                          ___________________________

                           DECIDED: December 11, 2006
                          ___________________________



Before LOURIE, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.


                                     DECISION

      Thomas F. O’Connor petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) that sustained the reconsideration decision of the

Office of Personnel Management (“OPM”) denying his application for disability

retirement under the Civil Service Retirement System (“CSRS”). O’Connor v. Office of

Pers. Mgmt., No. PH-0831-05-0173-I-1 (M.S.P.B. Mar. 29, 2006). We affirm.
                                       DISCUSSION

                                           I.

       Mr. O’Connor, a former employee of the United States Postal Service, applied to

OPM for disability retirement on May 22, 2003, several years after he left his

employment with the Postal Service. In his application, Mr. O’Connor stated that he

suffered from a number of disabling conditions, both mental and physical.             In a

reconsideration decision dated December 20, 2004, OPM denied the application. Mr.

O’Connor timely appealed to the Board, where the case was assigned to an

administrative law judge (“AJ”). Following a telephonic hearing, the AJ rendered an

initial decision sustaining OPM’s reconsideration decision. O’Connor v. Office of Pers.

Mgmt., No. PH-0831-05-0173-I-1 (M.S.P.B. Sept. 7, 2005) (Initial Decision). The AJ’s

initial decision became the final decision of the Board on March 29, 2006, when the

Board denied Mr. O’Connor’s petition for review for failure to meet the criteria for review

set forth at 5 C.F.R. § 1201.113(d).      This appeal followed.     We have jurisdiction

pursuant to 28 U..S.C. § 1295(a)(9).

                                           II.

       Our review of decisions denying applications for disability retirement is narrowly

circumscribed. Under 5 U.S.C. § 8347(c), OPM’s factual determinations regarding an

applicant’s disability are “final and conclusive and not subject to review.”          See

Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1327 (Fed. Cir. 2006). In Lindahl

v. Office of Pers. Mgmt., 470 U.S. 768 (1985), the Supreme Court held that our review

in disability cases is limited to determining whether “there has been a substantial

departure from important procedural rights, a misconstruction of the governing




2006-3267                                       2
legislation, or some like error going to the heart of the administrative determination.” Id.

at 791; see also Pitsker v. Office of Pers. Mgmt., 234 F.3d 1378, 1380-81 (Fed. Cir.

1995).

         Other than generally challenging the findings of OPM and the Board with respect

to his claimed disabilities – matters which we may not review – Mr. O’Connor argues

that the Board failed to take into account the Social Security Administration’s (“SSA’s”)

determination that he was disabled, which it was required to do. See Trevan v. Office of

Pers. Mgmt., 69 F.3d 520, 526 (Fed. Cir. 1995). We understand Mr. O’Connor to be

making an argument of harmful procedural error, which we may review. We reject the

argument, however.        Although Mr. O’Connor failed to present any documentation

showing SSA’s determination, see Initial Decision, slip op. at 15, the AJ assumed for

purposes of the appeal that SSA had made such a determination.               The AJ found,

however, that any such determination was outweighed by the evidence before him. A

determination by SSA that an individual is disabled does not establish entitlement to

CSRS disability benefits as a matter of law. Trevan, 69 F.3d at 526. Because the

Board considered the appeal based upon the assumption that the SSA had found Mr.

O’Connor to be disabled, there was no procedural error.

         For the foregoing reasons, the final decision of the Board is affirmed.

         Each party shall bear its own costs.




2006-3267                                       3
