but that plaintiff did file suit in another court challenging the denial. Given that conclusion, it is clear that the Federal Circuit already has reviewed many aspects of this same case. Consequently, this Court must take the Federal Circuit's decision on those aspects as res judicata in this action.
What issues are left for this Court to review? Plaintiff's application to the OPM was for disability retirement benefits. Under 5 U.S.C. § 8347(c), the OPM determines questions of disability and dependency. That section provides that decisions of the OPM concerning those matters are final and conclusive and are not subject to review. The only route of appeal of an MSPB decision is to the Federal Circuit pursuant to 5 U.S.C. § 7703(b)1. The only exception to this route is for "cases of discrimination " under 42 U.S.C. § 2000e-16(c) a in District Court which gives de novo review to the facts. § 7703(c).
Because of the finality provision of § 8347(c) for disability determinations, the Federal Circuit initially had concluded that it had no jurisdiction to review disability claims such as plaintiff's. However, the recent Supreme Court decision in Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S. Ct. 1620, 84 L. Ed. 2d 674 (1985), held that § 8347(c) only precludes review of the factual underpinnings of disability determinations. The Court held that the Federal Circuit did have jurisdiction to review the MSPB decision to determine 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.' " Id. at 1633 (quoting Scroggins v. United States, 184 Ct. Cl. 530, 397 F.2d 295, 297, cert. denied, 393 U.S. 952, 21 L. Ed. 2d 363, 89 S. Ct. 376 (1968)).
The Federal Circuit decision in plaintiff's appeal dealt with those potential procedural errors set forth in Scroggins. The Federal Circuit concluded that there were no procedural errors by the MSPB and upheld the MSPB's decision which had concluded that the OPM's denial of benefits was correct. Smith v. Office of Personnel Management, 790 F.2d 91, slip op. at 3 (Fed. Cir. 1986). That decision is res judicata on those issues for this Court. The only issue not yet reviewed and apparently the only issue left for this Court to give de novo review to, is whether the medical evidence met what the Federal Circuit concluded was the proper statutory standard for awarding of disability benefits. As the Federal Circuit concluded, the MSPB "applied the proper statutory standard" and "there were no procedural errors by the Board." (Slip op. at 3.)
An Order denying defendant s motion to dismiss accompanies this Memorandum Opinion.
This matter is before the Court on defendant's motion to dismiss. Upon careful consideration of the pleadings and the entire record herein, and for the reasons set forth in the accompanying Memorandum Opinion, it hereby is ORDERED, that defendant's motion to dismiss is denied. SO ORDERED.