NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3199

MARY K. WILLIS, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Mary K. Willis , of Fort Worth, Texas, pro se. Phyllis Jo Baunach , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Gregory G. Katsas , Assistant Attorney General, Jeanne E. Davidson , Director, and Mark A. Melnick , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3199

MARY K. WILLIS , Petitioner ,
v. OFFICE OF PERSONNEL MANAGEMENT , Respondent

. Petition for review of the Merit Syst ems Protection Board in DA844E070360-I-1.

_________ __________________ DECIDED: November 5, 2008

_________ __________________ Before RADER, LINN, and MOORE, Circuit Judges

. PER CURIAM. Petitioner Mary K. Willis appeals the final decision of the Merit Systems Protection Board (Board). Willis v. Office of Pers. Mgmt. , 108 M.S.P.R. 577 (M.S.P.B. 2008). The Board affirmed a decision of the Office of Personnel Management (OPM) denying Ms. Willis’s application for disabilit y retirement benefits under the Federal Employees Retirement System (FERS). Be cause we are barred from reviewing the Board's factual findings on disability, we affirm

. BACKGROUND Ms. Willis was a Management Analyst at t he Department of the Treasury, Bureau of Engraving and Printing in Fort Worth, Texa s. Ms. Willis resigned from her positionand applied to OPM for FERS disability reti rement benefits on June 24, 2005. In her application, Ms. Willis reported that she wa s disabled primarily because of a hypermetabolic and hyper-reactive state, verti go, immune deregulation, hypertension, reactive airway disease, autonomic ner vous system dysfunction, and chemical sensitivity to solvent exposur e. One of Ms. Willis’s physi cians, William H. Rhea, M.D., provided his medical opinion that Ms. Willis was completely disabled because of her conditions. In particular, Dr. Rhea indica ted that Ms. Willis had sensitivities to numerous agents that she reported were present in her work environment. OPM disallowed Ms. Willis's FERS disability retirement application on November 20, 2006. After reconsideration at Ms. W illis's request, OPM su stained its original decision on April 26, 2007. Ms . Willis then appealed to the Board. The administrative judge (AJ) affirmed OPM's reconsideration dec ision on September 5, 2007. Willis v. Office of Pers. Mgmt. , No. DA844E070360-I-1, 2008 M.S. P.B. LEXIS 14 40 (M.S.P.B. Sept. 5, 2007). The AJ found that Ms. Willis successfully established that she had the medical conditions she reported on her application for FERS disab ility retirement benefits and that Ms. Willis believed that she was entitled to disability retirement because of those conditions. Nonetheless, after an exhaustive analysis of the medical reports and records, subjective evidence, environmental reports, testimony of co-workers, and Ms. Willis’s testimony, the AJ concluded that Ms . Willis failed to prove by a preponderance of the evidence that her medical conditions rendered her unable to perform useful and efficient service in her position.

2008-3199 2Ms. Willis filed a petition for review of th e initial decision, which was denied on March 14, 2008. Willis , 108 M.S.P.R. 577. Ms. Willis now timely appeals. DISCUSSION “While we have exclusive jurisdiction ov er appeals from a final decision of the MSPB under 28 U.S.C. § 1295(a )(9), the scope of review regarding OPM disability determinations is restricted.” Vani eken-Ryals v. Office of Pers. Mgmt. , 508 F.3d 1034, 1038 (Fed. Cir. 2007). In FERS disability re tirement benefits cases, we are precluded by 5 U.S.C. § 8461(d) “from reviewing the factual underpinnings of physical disability determinations, but may address whether ther e has been a ‘substant ial departure from important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of t he administrative determination.’” Anthony v. Office of Pers. Mgmt. , 58 F.3d 620, 628 (Fed. Cir. 1995) (quoting Lindahl v. Office of Pers. Mgmt. , 470 U.S. 768, 791 (1985)). An applicant for FERS disability retirement must establish by a preponderance of the evidence that: (1) the app licant completed at least 18 m onths of creditable civilian service; (2) while employed in a FERS posi tion, the applicant became disabled because of a medical condition, resulting in deficient performance, conduct, or attendance, or if there is no such deficiency, the condition is incompatible with either useful and efficient service or retention in the position; (3) the di sabling medical condition is expected to continue for at least one year from the date of the application for disability retirement; (4) accommodation of the di sabling medical condition in the position held is unreasonable; and (5) the applic ant has not declined an offe r of reassignment to a vacant position. See 5 C.F.R. § 1201.56(a)(2); id. § 844.103(a).

2008-3199 32008-3199 4 Ms. Willis asserts that the Board incorre ctly weighed the evidence and reached an incorrect result. “[W]e may only address t he critical legal errors, if any, committed by the MSPB in reviewing OPM's decision.” Vanieken-Ryals , 508 F.3d at 1038. Unlike in Vanieken-Ryals , the Board here did not ignore an y evidence. Rather, the Board thoroughly considered all the ev idence and made its conclusion in light of the totality of its findings. We do not have authority to review the Board's factual findi ngs. Although we are sympathetic to Ms. Willis’s argu ment that she is unusually s ensitive to certain chemical agents, Ms. Willis does not point out, and we c annot identify ”any proc edural, legal, or other fundamental error." Anthony, 58 F.3d at 626. Accordin gly, the decision of the Board is affirmed. COSTS No costs.