Case: 23-2310 Document: 30 Page: 1 Filed: 04/11/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`NICHELLE HAYNES,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2023-2310
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. AT-844E-21-0553-I-1.
`______________________
`
`Decided: April 11, 2024
`______________________
`
`NICHELLE HAYNES, Phenix City, AL, pro se.
`
`
` ELIZABETH MARIE DURFEE PULLIN, Commercial Litiga-
`tion Branch, Civil Division, United States Department of
`Justice, Washington, DC, for respondent. Also represented
`by BRIAN M. BOYNTON, ALBERT S. IAROSSI, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`Before CHEN, HUGHES, and STARK, Circuit Judges.
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`NICHELLE HAYNES,
`Petitioner
`
`v.
`
`OFFICE OF PERSONNEL MANAGEMENT,
`Respondent
`______________________
`
`2023-2310
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. AT-844E-21-0553-I-1.
`______________________
`
`Decided: April 11, 2024
`______________________
`
`NICHELLE HAYNES, Phenix City, AL, pro se.
`
`
` ELIZABETH MARIE DURFEE PULLIN, Commercial Litiga-
`tion Branch, Civil Division, United States Department of
`Justice, Washington, DC, for respondent. Also represented
`by BRIAN M. BOYNTON, ALBERT S. IAROSSI, PATRICIA M.
`MCCARTHY.
`
`______________________
`
`Before CHEN, HUGHES, and STARK, Circuit Judges.
`
`
`
`Case: 23-2310 Document: 30 Page: 2 Filed: 04/11/2024
`
`2
`
`HAYNES v. OPM
`
`PER CURIAM.
`Nichelle Haynes appeals a decision of the Merit Sys-
`tems Protection Board (Board) that affirmed a decision by
`the Office of Personnel Management (OPM) denying her
`application for disability retirement under the Federal Em-
`ployees’ Retirement System (FERS). For the reasons dis-
`cussed below, we affirm.
`BACKGROUND
`Ms. Haynes worked for the Department of Veterans Af-
`fairs (VA) from December 13, 2015 until April 26, 2019 and
`from June 23, 2019 until her resignation, effective July 21,
`2020. At the time of her resignation, Ms. Haynes was an
`Advanced Medical Support Assistant with the Atlanta VA
`Health Care System. Her duties included “scheduling pa-
`tient appointments, tracking, reviewing, and responding to
`electronic orders, consults, and other elements in the elec-
`tronic medical record and medical systems.” Appx. 2–3 (in-
`ternal quotation marks and citation omitted).1
`On September 5, 2020, Ms. Haynes applied for disabil-
`ity retirement under FERS based on the following condi-
`tions: post-traumatic stress disorder (PTSD), military
`sexual trauma (MST), retinitis pigmentosa, disc degenera-
`tive disease, sinusitis, bursitis hip pain, and chronic left
`knee pain. In her application, Ms. Haynes asserted that
`her conditions prevented her from sitting or standing for
`long periods of time, impaired her vision, and caused trau-
`matic flashbacks.
`On April 23, 2021, OPM issued an initial decision deny-
`ing Ms. Haynes’s application, finding that she did not meet
`the criteria for entitlement to FERS disability retirement
`
`
`1 “Appx.” refers to the appendix filed with the govern-
`ment’s informal brief.
`
`
`
`Case: 23-2310 Document: 30 Page: 3 Filed: 04/11/2024
`
`HAYNES v. OPM
`
`3
`
`benefits. Ms. Haynes requested reconsideration of OPM’s
`initial decision, and OPM affirmed.
`Ms. Haynes then appealed to the Board. On November
`29, 2021, an administrative judge of the Board affirmed
`OPM’s decision. The administrative judge determined that
`Ms. Haynes had not shown that she more likely than not
`had a deficiency in her performance, conduct, or attend-
`ance due to a disability, as required to receive FERS bene-
`fits. The Board subsequently denied Ms. Haynes’s petition
`for review of the AJ’s initial decision.
`Ms. Haynes timely appealed to this court. We have ju-
`risdiction under 28 U.S.C. § 1295(a)(9).
`DISCUSSION
`This court’s scope of review for Board decisions is lim-
`ited by statute. We must affirm the Board’s decision unless
`it is “(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.”
`5 U.S.C. § 7703(c); Briggs v. Merit Sys. Prot. Bd., 331 F.3d
`1307, 1311 (Fed. Cir. 2003).
`The scope of our review of Board decisions is further
`restricted in cases involving FERS disability retirement
`benefits. See 5 U.S.C. § 8461(d) (providing that OPM’s de-
`cisions on questions of disability and dependency “are final
`and conclusive and are not subject to review”).2 In such
`
`
`2 The only exception to this rule appears in 5 U.S.C.
`§ 8461(e)(2), which provides that a disability retirement
`decision of the Board based on the mental condition of an
`involuntarily retired employee (i.e., when the disability re-
`tirement application is made “by an agency” rather than
`the employee) is reviewed under 5 U.S.C. § 7703. Because
`
`
`
`Case: 23-2310 Document: 30 Page: 4 Filed: 04/11/2024
`
`4
`
`HAYNES v. OPM
`
`cases, we may not review “OPM’s factual findings and con-
`clusions on disability.” Anthony v. Off. of Pers. Mgmt., 58
`F.3d 620, 624–25 (Fed. Cir. 1995) (holding that we may not
`review the Board’s factual findings that appellant had not
`proven that he was unable to perform the duties of his po-
`sition). We may, however, “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 de-
`termination.” Id. at 626 (internal quotations marks omit-
`ted) (citing Lindahl v. Off. of Pers. Mgmt., 470 U.S. 768,
`791 (1985)).
`On appeal, Ms. Haynes contends that the Board did not
`properly account for the mental anguish she experienced in
`conjunction with her PTSD and MST, which were exacer-
`bated when she was physically assaulted on the job.
`Ms. Haynes asks this court to consider that she is a combat
`veteran with PTSD and alleges that she would not have
`resigned had she not been physically assaulted and emo-
`tionally abused on the job.
`While we are sympathetic to Ms. Haynes, these consti-
`tute the “factual findings and conclusions on disability”
`that we are prohibited from reviewing. Anthony, 58 F.3d
`at 625. Indeed, the Board considered the evidentiary rec-
`ord and concluded that Ms. Haynes’s evidence failed to
`show that her medical conditions caused deficiencies in her
`performance, attendance, or conduct. For example, the
`Board considered a
`letter and session notes from
`Ms. Haynes’s psychologist, the appellant’s 2020 perfor-
`mance appraisal, a written statement by the appellant’s
`supervisor, and other medical assessments in the record to
`conclude that Ms. Haynes failed to establish that her med-
`ical conditions were disabling for the purposes of FERS
`
`Ms. Haynes’s application for disability retirement was
`made voluntarily, this exception does not apply.
`
`
`
`Case: 23-2310 Document: 30 Page: 5 Filed: 04/11/2024
`
`HAYNES v. OPM
`
`5
`
`benefit entitlement. Because these are findings of fact that
`are outside the scope of our review, we cannot set aside the
`Board’s disability determinations.
`considered
`have
`Furthermore,
`although we
`Ms. Haynes’s other arguments regarding the Board’s con-
`clusion, we have identified no “procedural, legal or other
`fundamental error,” Anthony, 58 F.3d at 626, that would
`result in setting aside the Board’s decision.
`CONCLUSION
`We have considered Ms. Haynes’s remaining argu-
`ments and find them unpersuasive. For the reasons above,
`we affirm the Board’s decision.
`AFFIRMED
`COSTS
`
`No costs.
`
`
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