Marcano v. Office of Personnel Management

108 F. App'x 633

• Court: Court of Appeals for the Federal Circuit
• Decided: August 23, 2004
• Docket: No. 04-3174
• Status: Published

Opinion

ON MOTION

ORDER

DYK, Circuit Judge.

The Office of Personnel Management moves to waive Fed. Cir. R. 27(f) and to dismiss Mercedes Marcano’s petition for review for lack of jurisdiction. Marcano has not responded.

The Merit Systems Protection Board affirmed OPM’s denial of Marcano’s application for a disability retirement annuity. Marcano petitioned this court for review.

Although we generally have subject matter jurisdiction over a petition for review of a Board affirmance of an OPM disability benefit denial, our review is limited by statute. See 5 U.S.C. § 8347(d)(2). In her brief, Marcano challenges only the factual determination that she did not show that she is disabled for purposes of receiving disability benefits. Pursuant to 5 U.S.C. § 8347 and Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985), this court has no jurisdiction to review factual issues. See Lindahl, 470 U.S. at 791, 105 S.Ct. 1620 (“the factual underpinnings of [5 U.S.C.] § 8347 disability determinations may not be judicially reviewed”); Anthony v. Office of Personnel Management, 58 F.3d 620, 626 (Fed.Cir.1995) (holding this court’s review of disability determinations limited to deciding whether there has been a substantial departure from important procedural rights or error of law; and precluded as to factual underpinnings).

Accordingly,

IT IS ORDERED THAT:

(1) OPM’s motion to waive Fed. Cir. R. 27(f) is granted.

(2) OPM’s motion to dismiss is granted.

(3) Each side shall bear its own costs.