Nichelle Haynes v. Office of Personnel Management

N OTE: This disposition is nonprecedential.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
______________________
N ICHELLE HAYNES , Phenix City, AL, pro se.
ELIZABETH M ARIE D URFEE P ULLIN, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represented
by BRIAN M. BOYNTON, ALBERT S. I AROSSI, P ATRICIA M.
MCCARTHY .
______________________
Before CHEN, HUGHES , and STARK, Circuit Judges.
Case: 23-2310 Document: 30 Page: 1 Filed: 04/11/2024

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HAYNES v. OPM 2
P ER 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.
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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).
D ISCUSSION
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
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HAYNES v. OPM 4
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.
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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.
Furthermore, although we have considered
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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