N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ NORMAN C. ALSTON, JR ., Petitioner,

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______________________

2013

- 3063

______________________

Petition for review of the Merit System s Protection Board in No. SF844E120620 -I-1

______________________

Decided: June 11, 2013

______________________

N ORMAN C. A LSTON , J R

. , of Fresno, California, pro se.

C ARRIE D UNSMORE , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were S TUART F. D ELERY , Principal Deputy Assistant Attorney General, J EANNE E. D AVIDSON , Dire ctor, and F RANKLIN E. W HITE , J R ., Assistant Director.

______________________

Before P ROST , B RYSON , and T ARANTO , Circuit Judges.NORMAN ALSTON , JR

. v. OPM 2

P ER C URIAM

. Norman Alston, Jr. appeals from the decision of the Meri t Systems Protection Board (“Board”) affirming the decision of the Office of Personnel Management (“OPM”) denying his application for disability retirement. For the reasons discussed below, we affirm.

I. B ACKGROUND In September 2010, Mr. Alston applied to OPM for disability retirement under the Federal Employees’ R etirement System (“FERS”). He claimed that he was disabled by “stress and panic disorder” that prevented him from perform ing the duties of his job with the federal government. Resp’t App. 38 . At the ti me of his applic ation, Mr. Alston was a Revenue Officer for the Internal Revenue Service and responsible for “collecting deli nquent tax and securing delinquent returns from taxpa yers.” Id. at 21

. A long w ith his application, Mr. Alston submitted se veral reports from a licensed clinical psychologist, Dr. King, to substantiate his disability. In those reports, Dr. King stated that Mr. Alston suffered from “Panic Diso rder,” was unable to “return to his position as a ‘Revenue Officer,’” should be “reassigned to an alternative position” with less stress, and experienced a reduction in symptoms after taking time off of work. Id. at 23

– 24

. In April 2011, OPM rejected Mr. Alston’s application for disability retirement. It determined that he had failed to provide “objective medical evidence that a disabling condition exist[ed]” and had failed to respond to its “letter requesting additional objective evidence.” Id. at 39. In its view, the reports from Dr. King did not establish that Mr. Alston’s condition warranted restrictions from performing the specific “critical or essential duties of [his] position or restriction from the workplace altogether.” Id. In itsNORMAN ALSTON , JR

. v. OPM 3

decision, OPM indicated that Mr. Alston could submit addition al medical documentation to support his claim

. Mr. Alston subsequently petitioned OPM for reconsi deration, but it denied his request in May 2012. It noted that Mr. Alston had not submit ted additional medical documentation to support his claim and determined that the exiting re ports from Dr. King did not provide the necessary “detailed and objective medical” evidence to “support his conclusions” regarding the effect and extent of Mr. Alston’s disability. Id. at 34.
Mr. Alston appealed OPM’s decision to the Board

, which affirmed in November 2012

. The administrative judge for the Board explained that

, in order to qualify for disability retirement, Mr. Alston had to show that he was “unable, because of disease or injury, to render useful and efficient service in [his] position

. ” Id. at 19. After a detailed review of the record evidence, including Dr. King’s reports, the administrative judge agreed with OPM that Mr. Alston had failed to make such a showing by a preponderance of the evidence

. The administrative judge determined that Mr. Alston did not adequately establish how his condition render ed him unable to “perform [his] specific work assignments or to be regular in attendance.” Id. at 28. That finding was based on the administrative judge ’s conclusion that “[n]either [Mr . Alston] nor Dr. King addressed in any specific way how [Mr. Alston]’s condition affected his ability to perform the duties of a Revenue Officer.” Id. at 27. The administrative judge also noted that Dr. King failed to “ address the degree to which [Mr. A lston]’s condition can or cannot be controlled, through medication or other treatment.” Id.

The administrative judge ’s decision became final in December 2012. In February 2013 , Mr. Alston filed a timely appeal with this court

.NORMAN ALSTON , JR

. v. OPM 4

II. A NALYSIS We have ju risdiction over Mr. Alston’s appeal under 28 U.S.C. § 1295(a)(9) , but the scope of our review is limited. Generally, our review of a decision of the Board is quite narrow. We may set it aside only if : “(1) arb itrary, capricious, an abuse of discretion, o r otherwise not in accordance with law; (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) ; see Briggs v. Merit Sys. Prot. Bd.

, 331 F.3d 1307, 1311 (Fed. Cir. 2003)

. B ecause Mr. Alston ’s appeal concerns the denial of his application for disability retirement under FERS , the scope of our review is further limited to critical errors of law

. “[T] his court is precluded by 5 U.S.C. § 8461(d) from reviewing the factual underpinnings of physica l disability determinations, but may address 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.’” Ant hony v. Office of Pers

. Mgmt. , 58 F.3d 620, 626 (Fed. Cir. 1995) (reviewing a decision of the Board affirming OPM’s denial of a request for disability retirement under FERS) (quoting Lindahl v. Office of Pers

. Mgmt. , 470 U.S. 768, 791 (1985)). Accordingly , “ we may only address the critical legal error s, if any, commi tted by the [Board] in reviewing OPM’s decision. ” Vanieken

- Ryals v. Office of Pers. Mgmt. , 508 F.3d 1034, 1038 (Fed. Cir. 2007) (reviewing a decision of the Board affirm ing OPM’s denial of dis ability retirement under the Civil Service Retirement System (“CSRS”) ); see Anthony

, 58 F.3d at 626

– 27 (holding that the same standard of review applies to Board decisions concerning disability retirement under CSRS and FERS).
On appeal , Mr. Alston has not shown that the Board committed any critical legal error in denying his requestNORMAN ALSTON , JR

. v. OPM 5

for disability retirement. Although he plainly indicated in his informal brief that “No,” the Board did not “apply the wrong law,” he stated as a ground for relief that “no one ever contacted the doctor during the case.” Resp’t App. 1. That could be construed as an assertion of critical legal

error. See Bruner v. Office of Pers. Mgmt. , 996 F.2d 290, 292 (Fed. Cir. 1993) (stating that a challenge to the bu rden of proof for establishing entitlement to disability retirement can concern an important procedural right that ma y have substantive consequences). However, even if construe d that way, the argument is without merit. Mr. Alston

, not the Board or OPM, b ore the burden to contact his doctor and gather evidence to prove his eligibility for disability retirement. See id. ( holding that applicants bear the burden to prove eligibility for disability retir ement).

Mr. Alston ’s only other assertion of error is a cha llenge to the Board’s weighing of the facts in this case, which we may not disturb on appeal. Specifically, he argues that the Board was “not truly considering what mental health does to a person.” Resp’t App. 2. Clearly, Mr. Alston believes that t he Board improperly weighed the facts in his case

. See Davis v. Office of Pers. Mgmt.

, 470 F.3d 1059, 1060

– 61 (Fed. Cir. 2006) (“[Petitioner’s] theory is that the Board improperly failed to consider the totality of the evidence . . . . [H]er arguments are , in reality, challenges to the fac tual underpinnings of the Board’ s determination .”). But t hat dispute is outside the scope of our review. Anthony

, 58 F.3d at 626 (holding that we are precluded from “reviewing the factual underpi nnings of physical disab ility determinations ”).

Because Mr. Alston has not shown any legal error in the Board’s decision and we may not review the factualNORMAN ALSTON , JR

. v. OPM 6

underpinnings of the denial of his application for disabi lity retirement , we must affirm. 1

AFFIRMED

C OSTS Each party shall bear its own costs.

1 Mr. Alston accompanied his initial notice of a ppeal to this court with a letter from Dr. King dated Jan uary 14, 2013. That letter was never presented to the Board as evidence . I ndeed, it was written after the a dministrative judge’s decision became final. Therefore, the letter is not part of the record. W e note , howe ver, that it addresses only factual matters outside our scope of r eview.