George Bearden v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE BEARDEN,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1491
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-844E-21-0215-I-2.
______________________
Decided: January 13, 2025
______________________
GEORGE ERIC BEARDEN, Laurel, MD, pro se.
STEPHANIE FLEMING, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA
PREHEIM.
______________________
Before PROST, TARANTO, and CHEN, Circuit Judges.
Case: 24-1491 Document: 23 Page: 1 Filed: 01/13/2025

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BEARDEN v. OPM 2
PER CURIAM.
George E. Bearden has petitioned for review of the
Merit Systems Protection Board’s (“MSPB”) final order
denying his petition for review and affirming the
administrative judge’s (“AJ”) February 28, 2022 initial
decision, which had affirmed the Office of Personnel
Management’s (“OPM”) reconsideration decision denying
Mr. Bearden’s application for disability retirement.
Bearden v. OPM, No. DC-844E-21-0215-I-2, 2023 WL
8672542 (M.S.P.B. Dec. 14, 2023) (“Decision”). For the
following reasons, we dismiss for lack of jurisdiction.
BACKGROUND
Mr. Bearden served as a Supervisory Operations
Support Specialist (“SOSS”) with the Department of
Homeland Security (“agency”). On March 30, 2018, Mr.
Bearden suffered a heart attack and participated in an
initial period of cardiac rehabilitation until August 2018,
at which time he was cleared to return to work with some
restrictions. S.A. 12.1 Mr. Bearden continued to receive
outpatient treatment and evaluation through the summer
of 2019. On February 26, 2019, Mr. Bearden was removed
from his SOSS position due to misconduct.
Mr. Bearden later received a 90% service-connected
disability rating from the Department of Veterans Affairs;
and on January 30, 2020, he applied for disability
retirement benefits. OPM denied Mr. Bearden’s
application for disability retirement benefits in its initial
decision and in its January 11, 2021 reconsideration
decision. Mr. Bearden appealed to the MSPB, and the AJ
affirmed the agency’s reconsideration decision. The AJ’s
initial decision became final on December 14, 2023.
1 “S.A.” refers to the supplemental appendix
included with the government’s informal brief.
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BEARDEN v. OPM 3
Mr. Bearden timely petitioned for review.
DISCUSSION
Ordinarily, in review of MSPB final decisions, we are
required to affirm the decision unless “any agency action,
findings, or conclusions [are] found 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.” 5 U.S.C.
§ 7703(c). In a review of an MSPB decision arising out of
an OPM disability determination, however, our review is
limited further. Such a review is limited to determine 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.” Reilly v. OPM, 571
F.3d 1372, 1377 (Fed. Cir. 2009) (quoting Lindahl v. OPM,
470 U.S. 768, 780–81 (1985) (cleaned up)); see also 5 U.S.C.
§ 8347(c). As we explained in Reilly, we have jurisdiction
to review “claims of serious legal error in the course of the
proceedings” but not “issues related to evidentiary
sufficiency or to minor legal errors.” 571 F.3d at 1377–78.
Mr. Bearden’s arguments here relate only to “issues
related to evidentiary sufficiency or to minor legal errors,”
id., and thus we have no jurisdiction. For example,
Mr. Bearden argues that the AJ “did not take total
consideration” of his medical conditions and limitations
and that he is entitled to retirement benefits based on
these limitations. Pet’r’s Informal Br. 2. Mr. Bearden
submits statements provided by his independent medical
examiner and presents numerous medical conditions that
allegedly “prevent[ed] him from performing the essential
functions of his position” as an SOSS. Pet’r’s Informal
Br. 20–25.
In Reilly, we concluded that these types of
arguments—directed to the failure to consider evidence or
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BEARDEN v. OPM 4
give proper weight to certain evidence—are beyond the
scope of our review. 571 F.3d at 1377–78. We therefore
have no jurisdiction over Mr. Bearden’s petition.
CONCLUSION
We have considered Mr. Bearden’s remaining
arguments and find them unpersuasive. Accordingly, the
petition for review of the final decision of the MSPB is
dismissed.
DISMISSED
COSTS
No costs.
Case: 24-1491 Document: 23 Page: 4 Filed: 01/13/2025

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