NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

GREGORY W. INGRAM,

Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent.

______________________ 

2013-3022

______________________ 

Appeal from the Merit Systems Protection Board in 

No. DC831E090776-M-1.

______________________ 

Decided: March 12, 2013 

______________________ 

GREGORY W. INGRAM, of Phoenix, Arizona, pro se. 

STEVEN M. MAGER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were STUART F. DELERY, Principal Deputy 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES, JR., Assistant Director. 

______________________ 
2 GREGORY INGRAM v. OPM

Before NEWMAN, LINN, and WALLACH, Circuit Judges.

PER CURIAM. 

Gregory W. Ingram (“Ingram”) appeals a final decision of the Merit Systems Protection Board (“Board”), 

which affirmed the Office of Personnel Management’s 

(“OPM”) denial of Ingram’s application for disability 

retirement. Because this court lacks jurisdiction to review the Board’s factual determinations regarding disability retirement, and because the Board’s decision is 

otherwise in accordance with the law, this court affirms.

BACKGROUND

Ingram began his employment as a Pay Technician 

with the Department of the Air Force (“Air Force”) on July 

10, 2006. On July 3, 2007, the Air Force terminated 

Ingram for failing to satisfactorily complete his one-year 

trial period. Specifically, the Air Force noted that Ingram 

had been absent from work for over eleven months, there 

was no indication he would return to work in the near 

future, and he failed to provide acceptable medical documentation indicating why he was unable to report to 

work.

On July 2, 2008, Ingram applied to OPM for disability 

retirement benefits. Ingram identified numerous conditions that he contended rendered him unable to work 

since July 11, 2006. In a decision dated April 9, 2009, 

OPM discussed Ingram’s medical documentation and 

concluded that he failed to establish he had a disabling 

medical condition prior to his removal from the Air Force. 

Ingram appealed to the Board and on November 24, 2009 

an administrative judge issued an initial decision that the 

Board affirmed in a July 23, 2010, final order. On appeal 

to this court, OPM moved to voluntarily remand Ingram’s 

case for the Board to consider the Social Security Administration’s May 2, 2010 grant of disability benefits to 

Ingram.
GREGORY INGRAM v. OPM 3

On remand, the administrative judge concluded that 

the Social Security Administration’s determination that 

Ingram became disabled in 2009 did not contradict his 

previous finding that Ingram had failed to establish 

entitlement to disability retirement prior to his July 2007 

termination. Consequently, the administrative judge 

again found that Ingram failed to establish by a preponderance of the evidence that he is entitled to disability 

retirement benefits. On August 27, 2012, the Board 

concluded that the administrative judge had not erred 

and the Board denied Ingram’s petition for review. Ingram timely appealed, and this court has jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. 

§ 7703(b)(1)(A).

DISCUSSION

OPM determines a claimant’s entitlement to disability 

retirement. Except to the extent an appeal to the Board 

may be permitted, see 5 U.S.C. § 8347(d), OPM’s decisions 

“are final and conclusive and are not subject to review,” 

§ 8347(c). Sections 8347(c) and (d) have been interpreted 

to foreclose this court’s review of underlying factual 

determinations in disability retirement cases, leaving this 

court with limited jurisdiction to consider only 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. OPM, 470 U.S. 

768, 791 (1985) (internal quotation marks omitted).

Ingram argues that the Board incorrectly decided or 

failed to take into account facts stated in his November 4, 

2011 and July 3, 2012 letters to the Clerk of the Board. 

Ingram’s argument has no merit. First, the argument 

flies in the face of the record, which plainly reveals that 

the Board expressly considered the evidence that Ingram 

refers to in those letters. Second, as noted above, this 

court by statute lacks authority to review the evidence 
4 GREGORY INGRAM v. OPM

and revisit the factual determinations made in this case. 

See 5 U.S.C. § 8347(c).

Ingram also cites Henderson v. Office of Personnel 

Management, 117 M.S.P.R. 313, 320-23 (2012), to argue 

that the Board applied the wrong law to his claim. The 

government argues that Ingram waived any argument 

about Henderson by not raising it before the Board. The 

government also argues that Henderson is inapposite 

because it merely confirms that the appropriate burden of 

proof is preponderant evidence, and not a higher “unambiguously and without contradiction” standard. Resp. Br. 

11. And here, the Board properly required Ingram to 

show his entitlement by a preponderance of the evidence.

The government is correct. 5 U.S.C. § 8337(a) sets 

forth the requirements for a claimant to receive disability 

retirement benefits. To receive such benefits, a claimant 

must present preponderant evidence that he meets the 

statutory requirements. Lindahl v. OPM, 776 F.2d 276 

(Fed. Cir. 1985) (holding, on remand from the Supreme 

Court, that the claimant bears the burden to show entitlement to disability retirement benefits by preponderant 

evidence). Henderson overrules previous cases suggesting 

that, pursuant to § 8337(a), a claimant must show “that 

medical evidence . . . unambiguously and without contradiction show[s] how the medical condition affects specific 

job duties or indicate[s] that the appellant cannot meet 

the requirements of her position.” 117 M.S.P.R. at 322. 

But the Board here did not require Ingram to meet any 

such heightened burden of proof. Both the administrative 

judge and the Board found that Ingram failed to demonstrate by preponderant evidence that he was entitled to 

disability retirement before his termination in July 2007.

For the foregoing reasons, the decision of the Board is 

affirmed.

AFFIRMED.
GREGORY INGRAM v. OPM 5

COSTS

Each party shall bear its own costs.