Rother v. Office of Personnel Management

12 F. App'x 944

Opinion

ON MOTION

CLEVENGER, Circuit Judge.

ORDER

Carol A. Rother moves for reconsideration of the court’s order dismissing her appeal for failure to file a Fed. Cir. R. 15(c) statement or a brief.

In this case, the Merit Systems Protection Board affirmed OPM’s disallowance of Rother’s application for disability benefits. Rother petitioned this court for review. Her petition was dismissed for failure to file a brief and to file a Fed. Cir. R. 15(c) statement.

Footnotes

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In her petition for review, Rother notes that she disagrees with the administrative law judge’s determination that she did not show that she is disabled for purposes of receiving disability benefits. Pursuant to 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 that issue. 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”). We will grant Rother’s motion to the extent that it changes the ground for dismissal of Rother’s case. Rother’s petition is dismissed for lack of jurisdiction and not for failure to prosecute.

Accordingly,

IT IS ORDERED THAT:

(1) Rother’s motion for reconsideration is granted in part. The mandate is recalled and the court’s order dismissing Rother’s petition for failure to prosecute is vacated.

(2) This petition for review is dismissed for lack of jurisdiction.

(3) Each side shall bear its own costs.

The court notes that the due date for filing the brief had not passed and the case was incorrectly dismissed on that ground.