Brenneman v. Office of Personnel Management, 05-3286.

• Decision Date: 27 February 2006
• Docket Number: No. 05-3286.,05-3286.
• Citation: 439 F.3d 1325
• Parties: Tosca P. BRENNEMAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

439 F.3d 1325

Tosca P. BRENNEMAN, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 05-3286.

United States Court of Appeals, Federal Circuit.

February 27, 2006.

Tosca P. Brenneman, of Fresno, California, pro se.

Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Kathryn A. Bleecker, Assistant Director. Of counsel on the brief was Jo Ann Chabot, Attorney, Office of Personnel Management, of Washington, DC.

Before BRYSON, LINN, and PROST, Circuit Judges.

BRYSON, Circuit Judge.

Tosca P. Brenneman petitions this court for review of a decision of the Merit Systems Protection Board, Docket No. SF-831E-04-0613-1-1, affirming the decision of the Office of Personnel Management ("OPM"), which denied her application for disability retirement under the Civil Service Retirement System ("CSRS"). We affirm.

I

Ms. Brenneman began working for the United States Postal Service on December 6, 1980. On August 22, 2002, she applied for disability retirement under the CSRS. In her application, Ms. Brenneman stated that she suffered from depression and that the symptoms of her depression interfered with her ability to drive her delivery vehicle and to deliver the mail, as her job required. The record indicates that Ms. Brenneman began seeing a psychiatrist and taking medication for symptoms of depression as of 1997. She continued to report to work until December 27, 2000, when she had a confrontation with her supervisor, left work, and did not return.

OPM rejected Ms. Brenneman's application. The deciding official considered Ms. Brenneman's statements, her medical documentation, a statement from her supervisor, and other evidence. Based on that evidence, the deciding official found that Ms. Brenneman had not sufficiently documented a disabling condition that prevented her from "rendering useful and efficient service for at least one year from the date of [the] application for disability retirement." Ms. Brenneman submitted additional medical records to OPM and sought reconsideration of the decision denying her application, but OPM affirmed its initial decision, concluding that even with the additional evidence Ms. Brenneman had not shown that she was eligible for disability retirement. Ms. Brenneman then appealed to the Board.

After a hearing, the administrative judge who was assigned to Ms. Brenneman's case agreed with OPM that Ms. Brenneman had failed to prove that she was disabled to the point of being unable to perform her duties. The administrative judge's decision became final when the full Board denied Ms. Brenneman's petition for review. Ms. Brenneman petitions this court for review of the Board's decision.

II

Our review of decisions denying applications for disability retirement is narrowly circumscribed. Under 5 U.S.C. § 8347(c), OPM's factual determinations regarding an applicant's disability are "final and conclusive and not subject to review." In Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985), the Supreme Court held that our review in disability cases is limited to determining 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." Id. at 791, 105 S.Ct. 1620; see also Pitsker v. Office of Pers. Mgmt., 234 F.3d 1378, 1380-81 (Fed.Cir. 1995).

On appeal, Ms. Brenneman argues that the Board failed to consider relevant evidence, including evidence from her treating physician and the "fact that [she] can not work." In addition, she argues that the Board improperly failed to consider a letter from the Postal Service stating that it did not have work available for her. Finally, she argues that the Board applied the wrong statutes and regulations in her case and should have applied 5 U.S.C. §§ 8451-8456 and 5 C.F.R. §§ 844.101-844.203.

With respect to Ms. Brenneman's argument that the Board failed to consider evidence from her treating physician and her assertion that she is unable to work, the record indicates that the Board considered both Ms. Brenneman's testimony and the testimony of Dr. Withrow, her psychiatrist, but that the Board found that evidence insufficient to establish her eligibility for disability retirement. The record also indicates that OPM considered all of the medical documentation that Ms. Brenneman submitted, which included notes from Dr. Withrow. Both OPM and the Board referred to that evidence and gave reasons for finding it insufficient in light of the requirements for showing entitlement to disability retirement. It is not within our statutory authority to disturb OPM's ruling on this ground.

Second, Ms. Brenneman argues that the Board erred in failing to consider a letter from the Postal Service stating that it did not have work available for her "[d]ue to [her] current medical situation." The letter to which Ms. Brenneman refers is dated January 10, 2005, and was submitted to the full Board as part of Ms. Brenneman's petition for review of the administrative judge's initial decision. In its final order, dated May 26, 2005, the Board declined to review the administrative judge's initial decision and declined to treat the January 10, 2005, letter as "new and material evidence. . . that, despite due diligence, was not available when the record closed." 5 C.F.R. § 1201.115(d). We sustain the Board's decision on that issue.

Although the contents of the letter are potentially material, depending in part on the authority of the writer of the letter to speak for the agency, Ms. Brenneman submitted the letter to the full Board without any explanation regarding the authority of the author or the circumstances under which the letter was obtained. The text of the letter and the fact that the letter is dated the same date as Ms. Brenneman's petition for review suggest that the letter was issued to her in response to her request. There is no indication in the record, however, of when that request was made or whether the request could have been made (and the letter issued) prior to the closing of the record before the administrative judge.

Both this court and the Board have held that a party submitting new evidence in connection with a petition for review must satisfy the burden of showing that the evidence is material and that it could not have been obtained earlier with the exercise of due diligence. See Azarkhish v. Office of Pers. Mgmt., 915 F.2d 675, 679 (Fed.Cir.1990); Comer v. Dep't of Veterans Affairs, 78 M.S.P.R. 633, 636 (1998); Davis v. Veterans Admin., 31 M.S.P.R. 368, 369 n. * (1986); Landon v. Dep't of the Navy, 27 M.S.P.R. 374, 378 (1985)...