Wayne L. Abner v. Office of Personnel Management

854 F.2d 1328, 1988 U.S. App. LEXIS 9625, 1988 WL 74157

• Court: Court of Appeals for the Federal Circuit
• Decided: July 18, 1988
• Docket: 88-3022
• Status: Unpublished

Opinion

854 F.2d 1328

Unpublished Disposition
NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Wayne L. ABNER, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.

No. 88-3022.

United States Court of Appeals, Federal Circuit.

July 18, 1988.

Before MARKEY, Chief Judge, DAVIS* and ARCHER, Circuit Judges.

PER CURIAM.

DECISION

The decision of the Merit Systems Protection Board (board), Docket No. SL831L8710260, affirming Office of Personnel Management's (OPM's) reconsideration decision denying Wayne L. Abner (Abner) a disability retirement annuity, is affirmed.

OPINION

Removal for inability to perform duties does not create a presumption of disability. See Lindahl v. Office of Personnel Management, 776 F.2d 276 (Fed.Cir.1985) (employee removed for inability to perform duties had burden to show disability). The board properly placed on Abner the burden to prove his disability. Id. at 280.

The board was not required, as Abner asserts, to "engage the services of a medical expert in interpreting medical findings and weighing the evidence." It was Abner's burden to convince the board that the evidence weighed in his favor.

Abner has not established that "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 (1985); Smith v. Office of Personnel Management, 760 F.2d 244, 246 (Fed.Cir.1985). Moreover, this court may not review the factual underpinnings of disability determinations. Lindahl, 470 U.S. at 791; Smith, 760 F.2d at 246. To the extent that Abner's petition raises issues within our scope of review, we have been shown no basis for reversal. McEachern v. Office of Personnel Management, 776 F.2d 1539, 1545-46 (Fed.Cir.1985).

* DAVIS, Circuit Judge, who died on June 19, 1988, participated in the consideration of this case but took no part in the decision