                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2008-3054


                             CLARENCE R. DUNBAR,

                                                          Petitioner,

                                         v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                          Respondent.

      Clarence R. Dunbar, of Dallas, Texas, pro se.

      Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief
was R. Alan Miller, Associate General Counsel, Office of Personnel Management, of
Washington, DC.

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                             NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                          2008-3054

                                  CLARENCE R. DUNBAR,

                                                                          Petitioner,

                                               v.

                         OFFICE OF PERSONNEL MANAGEMENT,

                                                                          Respondent.

Petition for review of the Merit Systems Protection Board in DA844E060524-I-1.
                            ___________________________

                            DECIDED: June 9, 2008
                            ___________________________


Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.

PER CURIAM.


       Petitioner Clarence R. Dunbar seeks review of a decision of the Merit Systems

Protection Board (“Board”). The Board affirmed a decision of the Office of Personnel

Management (“OPM”) denying petitioner’s application for a disability retirement annuity

pursuant to the Federal Employees Retirement System (“FERS”). We affirm.

                                     BACKGROUND

       Petitioner resigned his position as a WG-3566, grade 2 Housekeeping Aid for the

Veterans Administration (“VA”) Hospital in Dallas, Texas, on February 23, 2005. Mr.

Dunbar applied to OPM for disability retirement benefits in July 2005. To qualify for a

FERS disability retirement annuity, the employee must demonstrate by preponderant

evidence, inter alia, that he is unable to render useful and efficient service in his current

position. 5 U.S.C. § 8451(a).
       Petitioner claimed that he became disabled for his position in May 2004 due to

degenerative disc disease, radiculopathy, hypertension, kidney disease, and numbness

in his “right and lower extremities.” J.A. at 52. OPM disallowed this application, citing a

lack of evidence of medical conditions that precluded performance of the duties

associated with the job of Housekeeping Aid, and petitioner’s performance review in

which he was rated “fully successful.” J.A. at 21.

       Petitioner appealed to the Board.      On November 3, 2006, the Administrative

Judge (“AJ”) reversed, finding that petitioner “provided subjective and objective

evidence of his pain and disability and established that his knee and back problems

have rendered him unable to perform the tasks of his former Housekeeping Aid

position.” J.A. at 21. The AJ further noted that petitioner’s satisfactory performance

review could reasonably be explained by the fact that at the time of the review,

petitioner had assistance with his duties.

       On September 27, 2007, the full Board set aside the AJ’s decision and affirmed

the OPM decision, stating that “the medical evidence does not support the appellant’s

assertions that he is disabled from performing the duties of his position,” and as such

petitioner failed to satisfy the criteria for entitlement to FERS disability benefits. Dunbar

v. Office of Pers. Mgmt., 107 M.S.P.R. 32, 37 (2007).

       Petitioner timely appealed to our court, and we have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                       DISCUSSION

       In general we review Board decisions to determine whether they are "(1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2)




2008-3054                                 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); Carr v. Social Sec.

Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999).

       However, in disability retirement cases the scope of our judicial review has been

limited by 5 U.S.C. § 8347. The Supreme Court has held that review in such cases is

limited to “determin[ing] 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.’” Lindahl v. Office of Pers. Mgmt.,

470 U.S. 768, 791 (1985) (citation omitted, internal quotation marks omitted). This court

does not have authority to review the substantive merits of this case, because “the

factual underpinnings of § 8347 disability determinations may not be judicially

reviewed.” Id.

       Petitioner contends that the Board misconstrued the facts and erroneously

determined that he is ineligible for a FERS disability retirement annuity. Under 5 U.S.C.

§ 8347 as interpreted by the Supreme Court in Lindahl, we lack jurisdiction to determine

whether the Board properly adjudicated the facts in this case.

       Petitioner also appears to contend that the Board’s decision is contrary to Trevan

v. Office of Personnel Management, 69 F.3d 520 (Fed. Cir. 1995), where we held that

an applicant’s established eligibility for other disability benefits, such as Social Security

disability benefits, must be considered but does not compel a finding that the applicant

is disabled under FERS. Id. at 526. Thus, while petitioner here had received 10%

(knees) and 20% (back) VA disability ratings, these ratings did not bind OPM to find him




2008-3054                                 3
disabled under FERS. There is no basis for concluding that the Board failed to consider

the VA disability rating, which was specifically noted in the AJ’s decision. See J.A. at 19.

       Accordingly, the determination of the Board is affirmed.

                                          COSTS

       No costs.




2008-3054                                4
