Gregory W. Ingram v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GREGORY W. INGRAM,
Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent.
______________________
2013-3022
______________________
Appeal from the Merit Systems Protection Board in
No. DC831E090776-M-1.
______________________
Decided: March 12, 2013
______________________
G REGORY W. I NGRAM , of Phoenix, Arizona, pro se.
STEVEN M. MAGER, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. D ELERY , Principal Deputy
Assistant Attorney General, J EANNE E. D AVIDSON, Direc-
tor, and REGINALD T. BLADES , J R., Assistant Director.
______________________

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GREGORY INGRAM v. OPM 2
Before N EWMAN, L INN , and WALLACH , Circuit Judges.
P ER CURIAM .
Gregory W. Ingram (“Ingram”) appeals a final deci-
sion of the Merit Systems Protection Board (“Board”),
which affirmed the Office of Personnel Management’s
(“OPM”) denial of Ingram’s application for disability
retirement. Because this court lacks jurisdiction to re-
view the Board’s factual determinations regarding disabil-
ity retirement, and because the Board’s decision is
otherwise in accordance with the law, this court affirms.
BACKGROUND
Ingram began his employment as a Pay Technician
with the Department of the Air Force (“Air Force”) on July
10, 2006. On July 3, 2007, the Air Force terminated
Ingram for failing to satisfactorily complete his one-year
trial period. Specifically, the Air Force noted that Ingram
had been absent from work for over eleven months, there
was no indication he would return to work in the near
future, and he failed to provide acceptable medical docu-
mentation indicating why he was unable to report to
work.
On July 2, 2008, Ingram applied to OPM for disability
retirement benefits. Ingram identified numerous condi-
tions that he contended rendered him unable to work
since July 11, 2006. In a decision dated April 9, 2009,
OPM discussed Ingram’s medical documentation and
concluded that he failed to establish he had a disabling
medical condition prior to his removal from the Air Force.
Ingram appealed to the Board and on November 24, 2009
an administrative judge issued an initial decision that the
Board affirmed in a July 23, 2010, final order. On appeal
to this court, OPM moved to voluntarily remand Ingram’s
case for the Board to consider the Social Security Admin-
istration’s May 2, 2010 grant of disability benefits to
Ingram.

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GREGORY INGRAM v. OPM 3
On remand, the administrative judge concluded that
the Social Security Administration’s determination that
Ingram became disabled in 2009 did not contradict his
previous finding that Ingram had failed to establish
entitlement to disability retirement prior to his July 2007
termination. Consequently, the administrative judge
again found that Ingram failed to establish by a prepon-
derance of the evidence that he is entitled to disability
retirement benefits. On August 27, 2012, the Board
concluded that the administrative judge had not erred
and the Board denied Ingram’s petition for review. In-
gram timely appealed, and this court has jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
D ISCUSSION
OPM determines a claimant’s entitlement to disability
retirement. Except to the extent an appeal to the Board
may be permitted, see 5 U.S.C. § 8347(d), OPM’s decisions
“are final and conclusive and are not subject to review,”
§ 8347(c). Sections 8347(c) and (d) have been interpreted
to foreclose this court’s review of underlying factual
determinations in disability retirement cases, leaving this
court with limited jurisdiction to consider only 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.” Lindahl v. OPM, 470 U.S.
768, 791 (1985) (internal quotation marks omitted).
Ingram argues that the Board incorrectly decided or
failed to take into account facts stated in his November 4,
2011 and July 3, 2012 letters to the Clerk of the Board.
Ingram’s argument has no merit. First, the argument
flies in the face of the record, which plainly reveals that
the Board expressly considered the evidence that Ingram
refers to in those letters. Second, as noted above, this
court by statute lacks authority to review the evidence

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GREGORY INGRAM v. OPM 4
and revisit the factual determinations made in this case.
See 5 U.S.C. § 8347(c).
Ingram also cites Henderson v. Office of Personnel
Management, 117 M.S.P.R. 313, 320-23 (2012), to argue
that the Board applied the wrong law to his claim. The
government argues that Ingram waived any argument
about Henderson by not raising it before the Board. The
government also argues that Henderson is inapposite
because it merely confirms that the appropriate burden of
proof is preponderant evidence, and not a higher “unam-
biguously and without contradiction” standard. Resp. Br.
11. And here, the Board properly required Ingram to
show his entitlement by a preponderance of the evidence.
The government is correct. 5 U.S.C. § 8337(a) sets
forth the requirements for a claimant to receive disability
retirement benefits. To receive such benefits, a claimant
must present preponderant evidence that he meets the
statutory requirements. Lindahl v. OPM, 776 F.2d 276
(Fed. Cir. 1985) (holding, on remand from the Supreme
Court, that the claimant bears the burden to show enti-
tlement to disability retirement benefits by preponderant
evidence). Henderson overrules previous cases suggesting
that, pursuant to § 8337(a), a claimant must show “that
medical evidence . . . unambiguously and without contra-
diction show[s] how the medical condition affects specific
job duties or indicate[s] that the appellant cannot meet
the requirements of her position.” 117 M.S.P.R. at 322.
But the Board here did not require Ingram to meet any
such heightened burden of proof. Both the administrative
judge and the Board found that Ingram failed to demon-
strate by preponderant evidence that he was entitled to
disability retirement before his termination in July 2007.
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED.

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GREGORY INGRAM v. OPM 5
COSTS
Each party shall bear its own costs.

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