Randall L. Meyer v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3300
RANDALL L. MEYER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
Randall L. Meyer, of Milwaukee, Wisconsin, pro se.
Earl A. Sanders, Attorney, Office of Personnel Management, of Washington, DC,
for respondent. On the brief were James W. Poirier, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department of Justice, of Washington,
DC. Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director; and
Steven J. Gillingham, Assistant Director.
Appealed from: United States Merit Systems Protection Board

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NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-3300
RANDALL L. MEYER,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
__________________________
DECIDED: May 1, 2007
__________________________
Before NEWMAN, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.
Randall L. Meyer, appearing pro se, appeals the decision of the Merit Systems
Protection Board, Docket No. CH844E050173-I-1, affirming the denial of his claim for
disability benefits under the Federal Employees Retirement System. We vacate the
Board's decision and remand for reconsideration of Mr. Meyer's petition for review.

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2006-3300 2
BACKGROUND
Mr. Meyer started employment as a mail handler at the United States Postal Service
in October 1984. In May 2003 he was removed from service for violation of a last chance
agreement. In March 2004 he applied to the Office of Personnel Management for disability
retirement benefits, stating that various medical problems interfered with his ability to
perform his duties. OPM responded that he had submitted inadequate medical
documentation supporting his application. He provided no further information, and in
September 2004 OPM denied his application, advising him of his right to appeal to the
Board.
Mr. Meyer appealed OPM's reconsideration to the Board, and on the appeal form he
designated his cousin, Mr. Kowalski, as his representative. On the appeal petition a hand-
written note signed by Mr. Kowalski stated: "Mr. Meyer needs assistance in filing his claims
due to mental disability." With the petition several additional documents were submitted,
including a letter from Dr. William Anderson of the Department of Veterans Affairs, dated
December 7, 2004, explaining that Mr. Meyer was being treated for depression with three
separate drugs, and had been under treatment for various ailments, as well as, a one-page
letter from Dr. William F. Stineman, dated April 21, 2004, describing Mr. Meyer's back
problems since 1986, depression, and other ailments. On March 10, 2005 the AJ issued
an order closing the record as of March 28, 2005. In that order the AJ's opinion described
the events:
Appellant was informed at the status conference in this matter that he could
not prevail in this action unless he submitted medical records or the
testimony of a medical professional. Appellant chose not to submit any
medical records or any testimony.

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2006-3300 3
The AJ also referred to the medical documentation that stated that Mr. Meyer had suffered
from various ailments since 1986. The AJ observed that Meyer was nevertheless able to
work during that period, and that nothing in the records provided by or concerning Mr.
Meyer stated that he was or is unable to perform his job functions. The AJ also rejected
the argument that Mr. Meyer was not capable of presenting his case:
There was a hand-written note from an unknown person on Appellant's
appeal form claiming that Appellant needed assistance due to a mental
illness . . . While a note from Dr. William Anderson indicates that Appellant
had been treated for depression . . . nothing in the record indicated that
Appellant was not capable of proceeding with case without assistance.
On January 9, 2006 Mr. Meyer, represented by counsel, filed a petition for review by the full
Board, and submitted another letter from Dr. Anderson dated December 20, 2005,
describing his medical problems. Dr. Anderson's letter referred to Mr. Meyer's ongoing
dysfunction and "inability to act on [his] own behalf." Dr. Anderson assessed his medical
condition of depression, stating "Fortunately, the [medications] you now take are more
effective, but [unfortunately] I expect your depression to be chronic, with a successful return
to work being very unlikely." The Board denied the petition, with the statement that there
was "no new, previously unavailable evidence." The Board did not mention the additional
medical documentation. This appeal followed.
DISCUSSION
The Federal Circuit does not have authority to find or review the facts of disability;
our jurisdiction is limited to determining whether there was 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 Pers.
Mgmt., 470 U.S. 768, 791 (1985).

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2006-3300 4
Mr. Meyer states that he did not initially submit multiple physicians' and other
statements due to his mental inability to understand what was required. He asks that the
additional material submitted with his petition to the full Board be considered.
The letter from Dr. Anderson that was submitted to the Board is significant for two
reasons: it contains an explanation of why the materials submitted with the petition for
review were previously unavailable ("he was overwhelmed by it all and not capable . . . due
to depression"); and it is also evidence of Mr. Meyer's mental disability as early as March
2004, less than a year after he was removed from employment. We recognize that the
Board might have concluded that the explanation of Mr. Meyer's untimely submission of the
new information was unconvincing, but Dr. Anderson's account of Mr. Meyer's mental
problems is both uncontradicted and sufficiently strong that it is reasonable to say that if the
Board found Dr. Anderson's letter unpersuasive for some reason, it should have said so
rather than simply stating that there was "no new, previously unavailable evidence."
We are cognizant of the following relevant facts bearing on the disposition of the
present appeal: (1) OPM did not contradict Dr. Anderson's explanation in its reply to the
petition; (2) the Board did not explicitly contradict his explanation; and (3) the Board did not
reject Mr. Meyer's new evidence as immaterial, and we decline to impute such a finding to
the Board given the possible materiality of the new evidence in light of the record as a
whole. In light of the new medical evidence, including Dr. Anderson's second letter, and
given the Board's lack of a proper explanation for its decision, we vacate the Board's
decision and remand to the Board for consideration of Mr. Meyer's petition for review.

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