NOTE: This disposition is nonprecedential.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 Systems Protection 

Board in No. SF844E120620-I-1 

______________________ 

Decided: June 11, 2013

______________________ 

NORMAN C. ALSTON, JR., of Fresno, California, pro se. 

 

CARRIE DUNSMORE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

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

on the brief were STUART F. DELERY, Principal Deputy 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, and FRANKLIN E. WHITE, JR., Assistant Director. 

______________________ 

Before PROST, BRYSON, and TARANTO, Circuit Judges.
2 NORMAN ALSTON, JR. v. OPM

PER CURIAM. 

Norman Alston, Jr. appeals from the decision of the 

Merit 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. BACKGROUND

In September 2010, Mr. Alston applied to OPM for 

disability retirement under the Federal Employees’ Retirement System (“FERS”). He claimed that he was 

disabled by “stress and panic disorder” that prevented 

him from performing the duties of his job with the federal 

government. Resp’t App. 38. At the time of his application, Mr. Alston was a Revenue Officer for the Internal 

Revenue Service and responsible for “collecting delinquent tax and securing delinquent returns from taxpayers.” Id. at 21. 

Along with his application, Mr. Alston submitted several reports from a licensed clinical psychologist, Dr. 

King, to substantiate his disability. In those reports, Dr. 

King stated that Mr. Alston suffered from “Panic Disorder,” 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 its 
 NORMAN ALSTON, JR . v. OPM 3

decision, OPM indicated that Mr. Alston could submit 

additional medical documentation to support his claim. 

Mr. Alston subsequently petitioned OPM for reconsideration, but it denied his request in May 2012. It noted 

that Mr. Alston had not submitted additional medical 

documentation to support his claim and determined that 

the exiting reports 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 rendered 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. Alston]’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. 
4 NORMAN ALSTON, JR. v. OPM

II. ANALYSIS

We have jurisdiction 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) arbitrary, capricious, an abuse of discretion, or 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). 

Because 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 physical 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.’” Anthony 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 errors, if any, committed 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 

affirming OPM’s denial of disability 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 request 
 NORMAN 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 burden of proof for establishing entitlement to disability 

retirement can concern an important procedural right 

that may have substantive consequences). However, even 

if construed that way, the argument is without merit. Mr. 

Alston, not the Board or OPM, bore 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 retirement). 

Mr. Alston’s only other assertion of error is a challenge 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 the 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 factual underpinnings of the 

Board’s determination.”). But that dispute is outside the 

scope of our review. Anthony, 58 F.3d at 626 (holding that 

we are precluded from “reviewing the factual underpinnings of physical disability determinations”). 

Because Mr. Alston has not shown any legal error in 

the Board’s decision and we may not review the factual 
6 NORMAN ALSTON, JR. v. OPM

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

AFFIRMED

COSTS

Each party shall bear its own costs.

1 Mr. Alston accompanied his initial notice of appeal to this court with a letter from Dr. King dated January 14, 2013. That letter was never presented to the 

Board as evidence. Indeed, it was written after the administrative judge’s decision became final. Therefore, the 

letter is not part of the record. We note, however, that it 

addresses only factual matters outside our scope of review.