                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2006-3300



                                RANDALL L. MEYER,

                                                            Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.

      Randall L. Meyer, of Milwaukee, Wisconsin, pro se.

        Earl A. Sanders, Attorney, Office of Personnel Management, of Washington, DC,
for respondent. On the brief were James W. Poirier, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of Washington,
DC. Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director; and
Steven J. Gillingham, Assistant Director.


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                      NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                      2006-3300



                                 RANDALL L. MEYER,

                                                      Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.



                           __________________________

                              DECIDED: May 1, 2007
                           __________________________



Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.

PER CURIAM.




      Randall L. Meyer, appearing pro se, appeals the decision of the Merit Systems

Protection Board, Docket No. CH844E050173-I-1, affirming the denial of his claim for

disability benefits under the Federal Employees Retirement System. We vacate the

Board's decision and remand for reconsideration of Mr. Meyer's petition for review.
                                      BACKGROUND

         Mr. Meyer started employment as a mail handler at the United States Postal Service

in October 1984. In May 2003 he was removed from service for violation of a last chance

agreement. In March 2004 he applied to the Office of Personnel Management for disability

retirement benefits, stating that various medical problems interfered with his ability to

perform his duties.      OPM responded that he had submitted inadequate medical

documentation supporting his application. He provided no further information, and in

September 2004 OPM denied his application, advising him of his right to appeal to the

Board.

         Mr. Meyer appealed OPM's reconsideration to the Board, and on the appeal form he

designated his cousin, Mr. Kowalski, as his representative. On the appeal petition a hand-

written note signed by Mr. Kowalski stated: "Mr. Meyer needs assistance in filing his claims

due to mental disability." With the petition several additional documents were submitted,

including a letter from Dr. William Anderson of the Department of Veterans Affairs, dated

December 7, 2004, explaining that Mr. Meyer was being treated for depression with three

separate drugs, and had been under treatment for various ailments, as well as, a one-page

letter from Dr. William F. Stineman, dated April 21, 2004, describing Mr. Meyer's back

problems since 1986, depression, and other ailments. On March 10, 2005 the AJ issued

an order closing the record as of March 28, 2005. In that order the AJ's opinion described

the events:

         Appellant was informed at the status conference in this matter that he could
         not prevail in this action unless he submitted medical records or the
         testimony of a medical professional. Appellant chose not to submit any
         medical records or any testimony.



2006-3300                                     2
The AJ also referred to the medical documentation that stated that Mr. Meyer had suffered

from various ailments since 1986. The AJ observed that Meyer was nevertheless able to

work during that period, and that nothing in the records provided by or concerning Mr.

Meyer stated that he was or is unable to perform his job functions. The AJ also rejected

the argument that Mr. Meyer was not capable of presenting his case:

       There was a hand-written note from an unknown person on Appellant's
       appeal form claiming that Appellant needed assistance due to a mental
       illness . . . While a note from Dr. William Anderson indicates that Appellant
       had been treated for depression . . . nothing in the record indicated that
       Appellant was not capable of proceeding with case without assistance.

On January 9, 2006 Mr. Meyer, represented by counsel, filed a petition for review by the full

Board, and submitted another letter from Dr. Anderson dated December 20, 2005,

describing his medical problems. Dr. Anderson's letter referred to Mr. Meyer's ongoing

dysfunction and "inability to act on [his] own behalf." Dr. Anderson assessed his medical

condition of depression, stating "Fortunately, the [medications] you now take are more

effective, but [unfortunately] I expect your depression to be chronic, with a successful return

to work being very unlikely." The Board denied the petition, with the statement that there

was "no new, previously unavailable evidence." The Board did not mention the additional

medical documentation. This appeal followed.

                                       DISCUSSION

       The Federal Circuit does not have authority to find or review the facts of disability;

our jurisdiction is limited to determining whether there was 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).


2006-3300                                     3
       Mr. Meyer states that he did not initially submit multiple physicians' and other

statements due to his mental inability to understand what was required. He asks that the

additional material submitted with his petition to the full Board be considered.

       The letter from Dr. Anderson that was submitted to the Board is significant for two

reasons: it contains an explanation of why the materials submitted with the petition for

review were previously unavailable ("he was overwhelmed by it all and not capable . . . due

to depression"); and it is also evidence of Mr. Meyer's mental disability as early as March

2004, less than a year after he was removed from employment. We recognize that the

Board might have concluded that the explanation of Mr. Meyer's untimely submission of the

new information was unconvincing, but Dr. Anderson's account of Mr. Meyer's mental

problems is both uncontradicted and sufficiently strong that it is reasonable to say that if the

Board found Dr. Anderson's letter unpersuasive for some reason, it should have said so

rather than simply stating that there was "no new, previously unavailable evidence."

       We are cognizant of the following relevant facts bearing on the disposition of the

present appeal: (1) OPM did not contradict Dr. Anderson's explanation in its reply to the

petition; (2) the Board did not explicitly contradict his explanation; and (3) the Board did not

reject Mr. Meyer's new evidence as immaterial, and we decline to impute such a finding to

the Board given the possible materiality of the new evidence in light of the record as a

whole. In light of the new medical evidence, including Dr. Anderson's second letter, and

given the Board's lack of a proper explanation for its decision, we vacate the Board's

decision and remand to the Board for consideration of Mr. Meyer's petition for review.




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