Cunningham v. Opm

• Court: Court of Appeals for the Federal Circuit
• Decided: July 15, 2025
• Docket: 25-1036
• Status: Unpublished

Opinion

Case: 25-1036 Document: 31 Page: 1 Filed: 07/15/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

FELICIA CUNNINGHAM, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent ______________________

2025-1036 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-844E-20-0572-I-1. ______________________

Decided: July 15, 2025 ______________________

FELICIA CUNNINGHAM, Oxford, AL, pro se.

BLAKE WILLIAM COWMAN, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by TARA K. HOGAN, PATRICIA M. MCCARTHY, YAAKOV ROTH. ______________________ Case: 25-1036 Document: 31 Page: 2 Filed: 07/15/2025

Before MOORE, Chief Judge, STOLL, Circuit Judge, and WANG, District Judge. 1 PER CURIAM. Felicia Cunningham seeks review of a final decision of the Merit Systems Protection Board, which affirmed the Office of Personnel Management’s determination that she did not meet the legal requirements for disability retire- ment. For the following reasons, we affirm. BACKGROUND I Ms. Cunningham worked for the Department of Veter- ans Affairs as a Veterans Service Representative (VSR) from June 2015 until June 2019, when she resigned. In 2019 prior to her resignation, Ms. Cunningham applied for disability retirement under the Federal Employees’ Retire- ment System (FERS). In Ms. Cunningham’s statement of disability, which she filed shortly before her resignation, she identified “mi- graine headaches and anxiety” as her disabling conditions. SAppx22. 2 Ms. Cunningham explained that “[her daily] tension migraine headaches” resulted from “the demands of [her VSR] position” and “[t]he stress of the VSR position has aggravated [her] headaches and [she] cannot perform [her] duties any longer.” Id. She also noted her “depr[e]ssive disorder [wa]s . . . aggravated by the de- mands of” her position. Id.

1 Honorable Nina Y. Wang, District Judge, United States District Court for the District of Colorado, sitting by designation. 2 “SAppx” refers to the Supplemental Appendix sub- mitted by Respondent at ECF No. 25. Case: 25-1036 Document: 31 Page: 3 Filed: 07/15/2025

CUNNINGHAM v. OPM 3

On December 9, 2019, the Office of Personnel Manage- ment (OPM) denied Ms. Cunningham’s application, “find- ing that she did not meet the legal requirements for disability retirement.” SAppx2. Ms. Cunningham sought reconsideration, and OPM issued a final decision affirming its initial decision. Ms. Cunningham appealed OPM’s de- cision to the Merit Systems Protection Board. II The administrative judge affirmed OPM’s determina- tion that Ms. Cunningham’s documentation “was insuffi- cient to establish entitlement to disability retirement.” SAppx7–8. The administrative judge started his analysis by noting that Ms. Cunningham could establish eligibility for disability retirement by either “(1) . . . showing that the medical condition from which she suffers caused a defi- ciency in performance, attendance, or conduct; or (2) . . . showing that the medical condition is incompatible with useful and efficient service or retention in her posi- tion.” SAppx3 (citing 5 C.F.R. § 831.1203(a)(2)). First, addressing performance or conduct deficiencies, the administrative judge acknowledged Ms. Cunningham’s manager indicated that her “performance and conduct were satisfactory” and that Ms. Cunningham “produced no persuasive evidence or argument to contradict her supervi- sor’s conclusions.” SAppx8. The administrative judge also explained that, although Ms. Cunningham’s “medical con- ditions may . . . have impacted her performance and con- duct (e.g., her attendance) to some degree, there is simply no record evidence that [her performance and conduct] de- scended below a fully successful level.” Id. Second, addressing useful and efficient service, the ad- ministrative judge explained that Ms. Cunningham’s med- ical documentation did not state “that she was . . . unable to perform useful and efficient service. Nor d[id] the med- ical documentation explain how any medical conditions af- fected her specific work requirements as a VSR.” Id. The Case: 25-1036 Document: 31 Page: 4 Filed: 07/15/2025

administrative judge also considered Ms. Cunningham’s hearing testimony, noting she “identified no specific work requirements that her condition prevented her from ful- filling” and that the subjective evidence that she was “un- able to fulfill specific job requirements is unsupported by competent medical evidence to that effect.” SAppx8–9. In sum, the administrative judge found that “none of [Ms. Cunningham’s] medical documentation . . . indicates any sort of work restriction.” SAppx9. In evaluating the medical evidence, the administrative judge recognized “that the medical evidence reflects, at best, inconsistent use of prescribed medications by” Ms. Cunningham. Id. The administrative judge deter- mined that Ms. Cunningham’s treatment notes from 2017 and 2018 “show[ed] that [she] was quite late in beginning her Floricet prescription for migraines, and that she used it only occasionally thereafter,” and her 2019 treatment notes “stated [Ms. Cunningham] had not yet started taking amitriptyline and Maxalt” and that she “dropped Topomax because it made her feel funny.” Id. (internal quotation marks omitted). The administrative judge was “not per- suaded [Ms. Cunningham] followed her doctors’ directions closely enough to warrant an award of disability retire- ment benefits.” SAppx10. The administrative judge also considered that Ms. Cunningham “was granted Department of Veterans Affairs (DVA) disability benefits (70%) in August 2019” but explained that given the lack of “other record evidence meeting the applicable criteria[] . . . the DVA’s decision to grant benefits to [Ms. Cunningham] is insufficient to estab- lish that she is entitled to disability retirement under FERS.” Id. Finally, the administrative judge considered Ms. Cun- ningham’s claims of “missed work due to her medical con- ditions” but explained “there is no evidence of record quantifying her absences” and “her supervisor did not Case: 25-1036 Document: 31 Page: 5 Filed: 07/15/2025

CUNNINGHAM v. OPM 5

report an attendance problem.” Id. The administrative judge concluded “whatever work absences the appellant may have experienced do not overcome the lack of record evidence concerning the effect of her medical condition on her specific job duties.” Id. After analyzing the record and Ms. Cunningham’s arguments, the administrative judge concluded Ms. Cunningham did not demonstrate “by pre- ponderant evidence . . . [that] her medical condition(s) [were] incompatible with useful and efficient service or re- tention in her position.” SAppx11. Ms. Cunningham petitioned for review of the adminis- trative judge’s initial decision. In her petition she con- tended that “[d]ue process was ignored” because OPM filed the agency record two days late and “[OPM’s] response should have been objected [to] by [the administrative judge].” SAppx41. She also indicated that she had “docu- ments or evidence . . . important to [her] appeal that were not filed with the judge before the record closed,” but she failed to attach the documents and evidence as instructed. Id. Ms. Cunningham also indicated that her “mental is- sues” were relevant and the administrative judge over- looked her primary doctor’s medical opinion. Id. III The Board denied Ms. Cunningham’s petition and af- firmed the initial decision. The administrative judge’s ini- tial decision thus became the Board’s final decision pursuant to 5 C.F.R. § 1201.113(b). The Board first addressed Ms. Cunningham’s mental disabilities including depression and anxiety caused by mi- graine headaches. SAppx26. The Board “considered whether the record evidence would support a finding that [Ms. Cunningham] was disabled” because of her mental disabilities, but explained “the mere diagnosis of depres- sion or an anxiety disorder [without more] is not informa- tive enough to allow either OPM or the Board to Case: 25-1036 Document: 31 Page: 6 Filed: 07/15/2025

conclude . . . that an employee is disabled from useful and efficient service.” Id. The Board then turned to OPM’s filing of the OPM file two days late and observed that, at the prehearing confer- ence, “the administrative judge specifically noted that OPM’s file was in evidence and provided [Ms. Cunning- ham] an opportunity to make corrections to the summary,” but she did not “object to the inclusion of OPM’s file in evi- dence, and it is too late for her to do so on review.” SAppx27. The Board also explained that, “[i]f OPM’s file was not accepted into the record, the record would contain almost no medical evidence regarding [Ms. Cunningham’s] conditions,” and “[b]ecause it is her burden to prove her en- titlement to disability retirement benefits, the lack of such evidence could have harmed [her].” SAppx27 n.3. The Board concluded Ms. Cunningham failed to demonstrate “how the actions taken by the administrative judge ad- versely affected her substantive rights” despite the un- timely filing. SAppx27. Ms. Cunningham petitions for review of the Board’s fi- nal decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION On appeal, Ms. Cunningham contends: (1) “OPM should not have been allowed to render evidence . . . after the deadline,” Pet. Informal Br. 4; (2) she “should have been [given] an opportunity to upload new documents . . . [and] new medical evidence,” Pet. Informal Br. 3; (3) “OPM took parts of [her] medical [evidence but] not all [of her] medical evidence,” Pet. Informal Br. 4; (4) the Board erred in concluding “medical evidence of mental diagno[s]is wasn’t enough to prove [a] medi[c]al condition,” Pet. Infor- mal Br. 3; and (5) we should grant her retirement disability because the Social Security Administration and DVA “de- termined [she] was not able to work due to [her] major Case: 25-1036 Document: 31 Page: 7 Filed: 07/15/2025

CUNNINGHAM v. OPM 7

depressive disorder [and] chronic migra[ine]s,” Pet. Infor- mal Br. 4. We address each issue in turn. Generally, our review of the Board’s decisions is lim- ited. We must affirm the Board’s decision unless we con- clude that it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regula- tion having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Substantial ev- idence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Shapiro v. Social Sec. Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015) (citation omitted). Our jurisdiction is further limited in the FERS disabil- ity retirement context, as we are “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 im- portant procedural rights, a misconstruction of the govern- ing legislation, or some like error going to the heart of the administrative determination.’” Anthony v. Off. of Pers. Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl v. Off. of Pers. Mgmt., 470 U.S. 768, 791 (1985) (cleaned up) (further citation omitted)); see also id. (explaining that pe- titioner “simply assert[ed] that the Board wrongly weighed the evidence, a claim we may not address”); Davis v. Off. of Pers. Mgmt., 470 F.3d 1059, 1060 (Fed. Cir. 2006) (“Our re- view of a Board decision that affirms OPM’s denial of a dis- ability retirement application is extremely limited. We cannot review the factual underpinnings of a disability de- termination.”). Regarding Ms. Cunningham’s first and second argu- ments, that the Board erred by allowing OPM to submit evidence after the deadline and that she should have been afforded an opportunity to upload new documents and new medical evidence, “[p]rocedural matters relative to Case: 25-1036 Document: 31 Page: 8 Filed: 07/15/2025

discovery and evidentiary issues fall within the sound dis- cretion of the board and its officials.” Curtin v. Off. of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). We “will not overturn the board on such matters unless an abuse of dis- cretion is clear and is harmful.” Id. Here, we cannot say the Board abused its discretion in accepting OPM’s untimely filing by two days because Ms. Cunningham did not “object to the inclusion of OPM’s file in evidence,” SAppx27, and without the filing “the rec- ord would contain almost no medical evidence regarding [Ms. Cunningham’s] conditions,” SAppx27 n.3. In these circumstances, we cannot say there has been “a substantial departure from important procedural rights.” Anthony, 58 F.3d at 625 (internal quotations and citation omitted). Nor can we say that the Board erred in not admitting any possible evidence Ms. Cunningham would have offered because she neither provided the evidence nor explained why the evidence was not presented before the record closed. Although Ms. Cunningham’s petition for review in- dicates she had additional documents to present, she did not “include an explanation of why the evidence or argu- ment was not presented before the record below closed” as is required under 5 C.F.R. § 1201.114(b). Her only expla- nation of why she did not submit her documents or evi- dence earlier was “[p]lease consider [the] timeline of filed pleading by me and OPM and extension order.” SAppx42. Given the absence of any explanation why she did not pre- sent the evidence earlier, as well as Ms. Cunningham’s fail- ure to provide the evidence to the Board with her petition for review, we cannot say the Board abused its discretion. Brenneman v. Off. of Pers. Mgmt., 439 F.3d 1325, 1328 (Fed. Cir. 2006) (“In the absence of an explanation for the delay in obtaining the evidence in question, the appellant ‘has not shown that he exercised due diligence or ordinary prudence to obtain the evidence.’” (citation omitted)). Case: 25-1036 Document: 31 Page: 9 Filed: 07/15/2025

CUNNINGHAM v. OPM 9

As to Ms. Cunningham’s third argument, that OPM’s agency record was somehow incomplete, it does not appear that Ms. Cunningham presented this argument to the Board. Our “court has long held that appellants may not raise issues on appeal for the first time.” Kachanis v. Dep’t of Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000). Alt- hough Ms. Cunningham objected to the timeliness of OPM’s filing in her petition for review, she did not argue that the file was incomplete, other than noting she had ad- ditional evidence as discussed above. See generally SAppx41–43. Because this argument about the complete- ness of OPM’s filing was raised for the first time on appeal, we decline to consider it. Finally, regarding Ms. Cunningham’s fourth and fifth arguments, that the Board gave her mental diagnoses in- sufficient weight and that the Board should have granted her disability retirement in light of her awards of Social Security Disability Insurance and DVA benefits, we lack jurisdiction to do so. Anthony, 58 F.3d at 625 (“OPM’s fac- tual findings and conclusions on disability may be reviewed only by the Board (under subsection (e)(1)) and not by this court.”). 3 To the extent that Ms. Cunningham argues that the Board legally erred by failing to consider her diagnoses, the Board explained “the mere diagnosis of depression or an

3 The only exception to this rule appears in 5 U.S.C. § 8461(e)(2), which provides that a disability retirement decision of the Board based on the mental condition of an involuntarily retired employee (i.e., when the disability re- tirement application is made “by an agency” rather than the employee) is reviewed under 5 U.S.C. § 7703. Anthony, 58 F.3d at 624–25. This exception is not implicated here because Ms. Cunningham voluntarily resigned from her position. Case: 25-1036 Document: 31 Page: 10 Filed: 07/15/2025

anxiety disorder is not informative enough to allow either OPM or the Board to conclude, based on the diagnosis alone, that an employee is disabled from useful and effi- cient service.” SAppx26. The Board considered Ms. Cun- ningham’s diagnoses, and we lack jurisdiction to review the weight the Board assigned Ms. Cunningham’s diagnoses. Although we are sympathetic to Ms. Cunningham’s re- quest for disability retirement in light of her awards of So- cial Security Disability Insurance and DVA benefits, we lack jurisdiction over the factual findings she challenges and do not perceive any “substantial departure from im- portant procedural rights, a misconstruction of the govern- ing legislation, or some like error ‘going to the heart of the administrative determination’” in the Board’s decision. Anthony, 58 F.3d at 626 (quoting Lindahl, 470 U.S. at 791). CONCLUSION We have considered Ms. Cunningham’s remaining ar- guments and are not persuaded. For the foregoing reasons, we affirm the decision of the Board. AFFIRMED COSTS No costs.