Mercado v. Office of Personnel Management

103 F. App'x 381

• Court: Court of Appeals for the Federal Circuit
• Decided: June 18, 2004
• Docket: No. 04-3166
• Status: Published

Opinion

ON MOTION

RADER, Circuit Judge.

ORDER

The Office of Personnel Management (OPM) moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Miguel A. Mercado’s petition for review of the Merit Systems Protection Board’s decision in Mercado v. Office of Personnel Management, NY-844E-02-0123-I-1 (Oct. 31, 2002). Mercado has not responded.

Mercado seeks review of the Board’s decision finding an “that he “failed to meet his burden of showing that he incurred a disabling medical condition while employed in a position subject to [the Federal Employees’ Retirement System (FERS) ], and that the disability lasted for at least one year.” ” In his informal brief, Mercado asks this court to “see and review the evidence in this case.” His argument is limited to the allegation that the Board erred in affirming the agency’s reconsideration decision denying his request for disability retirement benefits under FERS because he “submitted enough evidence” in support of his request.

In Anthony v. Office of Personnel Management, 58 F.3d 620, 626 (Fed.Cir.1995), we held that:

[T]his court is 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 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 Personnel Management, 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985) ] (quotation omitted).

Here, as in Anthony, “the petitioner simply asserts that the Board wrongly weighed the evidence.” Id. In these circumstances, because Mercado’s sole claim is that the Board’s factual determinations were erroneous based upon the evidence presented, Mercado’s petition for review does not fall within our limited scope of review. See Smith v. Office of Personnel Management, 784 F.2d 397, 399 (Fed.Cir. 1986) (challenge to sufficiency of evidence of disability was not error going to heart of administrative determination).

Accordingly,

IT IS ORDERED THAT:

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

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

(3) All remaining motions are moot.

(4) Each side shall bear its own costs.