NOTE: This disposition is nonprecedential.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 Divisi on, 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Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential.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.2006-3300 2 BACKGROUND Mr. Meyer started employment as a mail handl er 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 Manage ment for disability retirement benefits, stating that various m edical problems interfer ed with his ability to perform his duties. OPM responded that he had submitted inadequate medical documentation supporting his app lication. He provided no further information, and in September 2004 OPM denied his applic ation, advising him of his right to appeal to the

Board. Mr. Meyer appealed OPM's recons ideration to the Board, and on the appeal form he designated his cousin, Mr. Kowalski, as his r epresentative. On t he appeal petition a handwritten note signed by Mr. Kowalski stated: "Mr. Meyer needs assistance in filing his claims due to mental disability." Wi th the petition several additional documents were submitted, including a letter from Dr. William Anderson of the Department of Vete rans Affairs, dated December 7, 2004, explaining that Mr. Meye r was being treated fo r 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 3 The AJ also referred to the medical document ation that stated that Mr. Meyer had suffered

from various ailments since 1986. The AJ obs erved that Meyer was nevertheless able to work during that period, and t hat nothing in the records pr ovided 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 not e from Dr. William Anderson indicates that Appellant had been treated for depression . . . not hing in the record indicated that Appellant was not capable of proceeding with case without assistance. On January 9, 2006 Mr. Meyer, represented by couns el, 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. Ander son'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, stati ng "Fortunately, the [medicati ons] you now take are more effective, but [unfortunately] I expect your depression to be chro nic, 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 hav e authority to find or review the facts of disability; our jurisdiction is limited to determining whet her there was a "subst antial 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 4 Mr. Meyer states that he di d not initially submit mu ltiple physicians' and other

statements due to his mental i nability to understand what was r equired. He asks that the additional material submitted with his pet ition to the full Board be considered.

The letter from Dr. Anderson that was submi tted to the Board is significant for two reasons: it contains an explanation of why t he materials submitted with the petition for review were previously unavailable ("he was ov erwhelmed 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 fr om 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. A nderson's account of Mr. Meyer's mental problems is both uncontradicted and su fficiently strong that it is r easonable to say that if the Board found Dr. Anderson's letter unpersuasive fo r some reason, it should have said so rather than simply stating that there was "no new, previously unavailable evidence." We are cognizant of the fo llowing 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 expl anation; and (3) t he 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 t he new evidence in light of the record as a whole. In light of the new medical evidenc e, 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 consider ation of Mr. Meyer's petition for review.