UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANDRE MOORE,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-844E-14-0886-I-1

DATE: June 18, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Stephen Domenic Scavuzzo, Esquire, McLean, Virginia, for the appellant.

Delores A. Saunders, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The Office of Personnel Management (OPM) has filed a petition for review 

of the initial decision, which reversed OPM’s reconsideration decision denying 

the appellant’s application for disability retirement benefits. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

 * A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

¶2 The appellant was a City Letter Carrier with the U.S. Postal Service and 

was removed from that position due to a non-work related disability. Initial 

Appeal File (IAF), Tab 13, Initial Decision (ID) at 2. He filed this appeal of 

OPM’s reconsideration decision denying his application for disability retirement 

benefits under the Federal Employees’ Retirement System (FERS). IAF, Tab 1. 

OPM submitted its file on the matter, IAF, Tab 4, and explained in its prehearing 

submission that although the appellant had the requisite 18 months of creditable 

service, he had not met the other requirements to demonstrate his eligibility for 

disability retirement, IAF, Tab 6. The appellant withdrew his hearing request and 

the administrative judge issued an order setting the close of the record. IAF, 

Tabs 7-8. In his prehearing conference summary, the administrative judge set 

forth the burdens and elements the appellant must establish to demonstrate by 

preponderant evidence that he is entitled to a disability retirement annuity. IAF, 

Tab 9. 

¶3 To be eligible for a disability retirement annuity under FERS, an employee 

must have completed at least 18 months of creditable civilian service, must be 
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unable, because of disease or injury, to render useful and efficient service in his

position, and must not have declined a reasonable offer of reassignment to a 

vacant position in the agency at the same or greater grade or pay level in his 

commuting area in which he is able to render useful and efficient service. 

5 U.S.C. § 8451(a); see 5 C.F.R. § 844.103(a). OPM’s implementing regulations 

further require that the disabling medical condition be expected to continue for at 

least 1 year from the date the application is filed and that accommodation of the 

condition in the appellant’s position be unreasonable. 5 C.F.R. § 844.103(a)(3), 

(4).

¶4 After considering the parties’ respective close of record submissions, the 

administrative judge reversed OPM’s reconsideration decision. See ID. In his 

initial decision, the administrative judge found that the appellant established that 

he suffered from degenerative disc disease involving chronic radiating pain at the 

time of his separation in January 2013. ID at 10. Noting the consistency between 

the appellant’s medical records both before and after his separation, the 

administrative judge determined that the appellant’s back problems continued 

and, because he found no evidence to indicate that the condition was in remission 

or was asymptomatic in the months following his separation, he further found that 

the appellant’s condition was expected to continue for over 1 year from the date 

the appellant applied for disability retirement. ID at 9-10. Following his 

comprehensive review of the medical evidence, the administrative judge 

determined that, when viewed in light of the agency’s documentation reflecting

the appellant’s extended time in a leave without pay status, the appellant 

established by preponderant evidence that his “disability prevented him from 

being regular in attendance and thereby rendered him unable to render useful and 

efficient service in his position.” ID at 11. Lastly, the administrative judge 

found no evidence to indicate that the appellant turned down any reassignment 

offer from his employing agency and, in light of his inability to walk his 

prescribed route, carry a heavy bag of mail, or drive a vehicle without 
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experiencing significant pain, the administrative judge found that the appellant 

met his burden of proving that accommodation of his condition in his position 

was not reasonable. ID at 12. 

¶5 In its timely-filed petition for review, OPM first argues that the 

administrative judge erred in affording the Bruner presumption to the appellant in 

this case. Petition for Review (PFR) File, Tab 1 at 5; see Bruner v. Office of 

Personnel Management, 996 F.2d 290, 294 (Fed. Cir. 1993). Under the Bruner 

presumption, an employee’s removal for physical inability to perform the 

essential functions of his position constitutes prima facie evidence that he is 

entitled to disability retirement; the burden of production then shifts to OPM to 

produce evidence sufficient to support a finding that the applicant is not entitled 

to disability retirement benefits; and, if OPM produces such evidence, the 

applicant then must come forward with evidence to rebut OPM’s assertion that he 

is not entitled to benefits. Bruner, 996 F.2d at 294. The agency contends that the 

administrative judge erred in granting the presumption in the absence of either 

proposal or removal letters that show the appellant’s removal for physical 

inability to perform the essential function of his position. PFR File, Tab 1 at 5. 

The agency also argues that, even if the Bruner presumption applies in this case, 

the administrative judge erred in failing to discuss how OPM rebutted the 

presumption. Id. The appellant responds in opposition to OPM’s petition for 

review. PFR File, Tab 3. 

¶6 Although OPM is correct that the administrative judge did not discuss 

exactly how it rebutted the Bruner presumption, the administrative judge’s 

determination that the appellant ultimately met his evidentiary burden to 

demonstrate his entitlement to a disability retirement annuity obviated the need 

for any further discussion of Bruner. See ID at 5-12. In any event, this does not 

mean that the administrative judge did not consider the agency’s rebuttal in his 

analysis. See Marques v. Department of Health & Human Services, 22 M.S.P.R. 

129, 132 (1984) (the administrative judge’s failure to mention all of the evidence 
5

of record does not mean that he did not consider it in reaching his decision), 

aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Indeed, even though the 

administrative judge found the presumption applicable under the circumstances of 

this appeal, he also found that the appellant established his entitlement to a 

disability retirement annuity on the strength of his own evidence, as necessarily 

would be the case when OPM rebuts the Bruner presumption and the appellant 

goes on to rebut OPM’s assertion that he is not entitled to benefits. We agree 

with the administrative judge’s determinations and find that he did not err in 

proceeding to the ultimate question rather than engaging in a burden-shifting 

analysis under Bruner. Moreover, because the appellant carried his statutory 

burden of proof, see 5 U.S.C. § 8451(a), any possible error in this regard did not 

affect the outcome of the case, e.g., Panter v. Department of the Air Force, 

22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a 

party’s substantive rights provides no basis for reversal of an initial decision). 

¶7 Next, OPM asserts that the administrative judge erred in his application of 

5 C.F.R. § 844.103(a)(2), (4)-(5). PFR File, Tab 1 at 6-7. OPM argues that the 

appellant’s medical evidence does not reflect that his condition is severe enough 

to warrant disability retirement and that the evidence fails to explain how he was 

unable to render useful and efficient service. Id. OPM also contends that,

because the appellant failed to establish a disabling medical condition, neither 

accommodation nor reassignment were necessary. Id. In doing so, OPM 

essentially challenges the administrative judge’s interpretation of, and the weight 

he afforded, the appellant’s evidence in his analysis. We have considered OPM’s 

arguments on review concerning the administrative judge’s weighing of the 

evidence, but we discern no reason to reweigh the evidence or substitute our 

assessment of the record evidence for that of the administrative judge. See, e.g.,

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason 

to disturb the administrative judge’s findings when she considered the evidence 

as a whole, drew appropriate inferences, and made reasoned conclusions); 
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Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 

(1987) (same). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 
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representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board