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Sesay v. Office of Personnel Management

U.S. Court of Appeals, Federal Circuit

February 04, 1999


Before Mayer, Chief Judge, Newman, and Schall, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.


Lavator B. Sesay petitions for review of the final decision of the Merit Systems Protection Board (Board) that sustained the reconsideration decision of the Office of Personnel Management (OPM) denying her application for disability retirement benefits. Sesay v. Office of Personnel Management, No. DA-844E-98-0145-I-1. The March 23, 1998 initial decision of the administrative Judge (AJ) became the final decision of the Board on August 4, 1998, when the Board denied Ms. Sesay's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. We affirm.



Ms. Sesay was employed by the United States Department of Veterans Affairs (agency) as a licensed vocational nurse at the Veterans Medical Center in Dallas Texas. On May 13, 1997, she was removed from her position based upon charges of misconduct. On May 24, 1997, she applied for disability retirement. In her application, she stated that she had been disabled since April 25, 1995, as a result of various conditions.

On August 27, 1997, OPM issued an initial decision denying the application. In the decision, OPM informed Ms. Sesay that her request for disability retirement was being disallowed because she had failed to establish a medical condition severe enough to prevent her from performing the essential duties of her position or severe enough to have caused the misconduct that had led to her removal by the agency. On November 24, 1997, OPM issued a reconsideration decision affirming its initial denial of Ms. Sesay's application for disability retirement.

As noted above, the Board affirmed OPM's decision. In his March 23, 1998 initial decision, the AJ determined that Ms. Sesay had failed to prove by a preponderance of the evidence that she was disabled for the position she held at the time of her removal. He also determined that she had failed to prove that the misconduct that had led to her removal was caused by any physical or mental impairment. In addition, the AJ noted that, as directed by her doctor, the agency had accommodated Ms. Sesay by placing her in a position that reasonably accommodated her various physical restrictions.


On appeal, Ms. Sesay argues that the Board erred in concluding that she failed to establish her entitlement to disability retirement. Specifically, she contends that the agency did not, in fact, reasonably accommodate her physical restrictions and that she was not physically able to perform the duties of her position because she is totally disabled. She also contends that the Board erred because it failed to take into account her knee surgery when determining whether she had established that she was disabled.

Normally, we review a decision of the Board under the standard set forth in 5 U.S.C. § 7703(c). Under that standard, we must affirm the Board's decision unless we find it to be (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed. Cir. 1995). The law is different, however, in a case involving disability retirement. Under 5 U.S.C. § 8461(d), we are precluded from reviewing "the factual underpinnings of physical disability determinations." Anthony v. Office of Personnel Management, 58 F.3d 620, 626 (Fed. Cir. 1995). The arguments made by Ms. Sesay that are noted in the preceding paragraph all involve, or relate directly to, "the factual underpinnings" of the Board's decision relating to her physical disability. Thus, they are beyond our scope of review and we are not authorized to consider them.

Ms. Sesay also argues that the Board erred by failing to take into account the fact that she is receiving Social Security payments. In arriving at a determination on disability, OPM and the Board are required to consider an award of Social Security benefits. See Trevan v. Office of Personnel Management, 69 F.3d 520, 526 (Fed. Cir. 1995). To the extent that she is contending that the Board did not comply with this legal requirement, Ms. Sesay has raised an issue of law that we may consider. See Anthony, 58 F.3d at 626. Her contention is without merit, however. A review of the AJ's initial decision makes it clear that he did take into account Ms. Sesay's receipt of Social Security benefits. However, to the extent that Ms. Sesay is arguing that the Board arrived at the wrong factual findings after considering the Social Security Administration's determination that she was disabled, she is raising an argument that is beyond the scope of our review. See id.

For the foregoing reasons, the decision of the Board is affirmed.

Each party shall bear its own costs.


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