Tracie K. Thurston v. Office of Personnel Management

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TRACIE K. THURSTON,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1519
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-844E-18-0480-I-1.
______________________
Decided: November 15, 2024
______________________
TRACIE K. THURSTON, Leadington, MO, pro se.
ANNE DELMARE, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M.
MCCARTHY.
______________________
Before MOORE, Chief Judge, SCHALL and TARANTO, Circuit
Judges.
Case: 24-1519 Document: 19 Page: 1 Filed: 11/15/2024

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THURSTON v. OPM 2
PER CURIAM.
Tracie Thurston appeals a decision of the Merit
Systems Protection Board (Board) affirming the Office of
Personnel Management’s (OPM) reconsideration decision
denying her application for disability retirement benefits
under the Federal Employee’s Retirement System (FERS).
For the following reasons, we affirm.
BACKGROUND
Ms. Thurston worked for the United States Postal
Service (USPS) from 2002 to 2016. In 2017, Ms. Thurston
applied for disability retirement under FERS, claiming she
could no longer perform her duties as a rural postal carrier
due to anxiety and panic attacks. S. Appx. 16;1 see also S.
Appx. 8. OPM issued an initial decision denying Ms.
Thurston’s application for disability retirement benefits. S.
Appx. 7–9. Ms. Thurston requested reconsideration of
OPM’s initial decision and provided additional medical
evidence. S. Appx. 1. OPM reviewed the medical evidence
and upheld the initial decision. Id. at 1–6. Ms. Thurston
appealed to the Board.
The Board affirmed OPM’s reconsideration decision.
Appx. 26–51.2 On April 29, 2019, Ms. Thurston filed a
petition for review of the Board’s initial decision that
included additional evidence in support of her petition.
Thurston v. Off. of Pers. Mgmt., No. CH-844E-18-0480-I-1,
Petition for Review (PFR) File, Tab 1 (M.S.P.B.). On June
22, 2021, after briefing on the petition for review
concluded, Ms. Thurston submitted more evidence, which
the Board allowed. Thurston, PFR File, Tabs 8–11. The
Board affirmed its initial decision and denied Ms.
1 “S. Appx.” refers to the Supplemental Appendix
attached to Respondent’s Informal Response Brief.
2 “Appx.” refers to the Appendix starting on page 11 of
Petitioner’s Informal Brief. See Dkt. 9 at 11.
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THURSTON v. OPM 3
Thurston’s petition for review, in part because no new and
material evidence was available. 5 C.F.R. § 1201.115;
Appx. 62. Ms. Thurston appeals. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
DISCUSSION
On appeal, Ms. Thurston claims the Board erred: (1) in
its disability determination, (2) by failing to give her a
hearing, (3) in finding her neck and back conditions were
not part of her disability claim, and (4) by failing to
consider her additional evidence.
The scope of our review in an appeal from a decision of
the Board is limited. Generally, we must affirm the
decision unless we find it 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). Our scope of
review of the disability determination under FERS here is
more limited. In a case like this, we are barred from
reviewing “factual findings and conclusions on disability”
by 5 U.S.C. § 8461(d). Anthony v. Off. of Pers. Mgmt., 58
F.3d 620, 625 (Fed. Cir. 1995).3 We may, however, review
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.” Marino v. Off. of
Pers. Mgmt., 243 F.3d 1375, 1377 (Fed. Cir. 2001) (quoting
3 An exception to that bar exists for certain disability
matters initiated by an agency, see 5 U.S.C. § 8461(e), but
it is not applicable here. See Haynes v. Off. of Pers. Mgmt.,
No. 2023-2310, 2024 WL 1561621, at *1–2 (Fed. Cir. Apr.
11, 2024); Scrivens v. Off. of Pers. Mgmt., 663 F. App’x 926,
928 (Fed. Cir. 2016).
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THURSTON v. OPM 4
Anthony, 58 F.3d at 626) (internal quotation marks
omitted).
Ms. Thurston alleges the Board erred in its disability
determination because she submitted sufficient evidence to
prove her disability. Ms. Thurston asks this court to
reweigh the evidence. Petitioner’s Informal Br. 4–10. We
are prohibited from reviewing “factual findings and
conclusions on disability.” Anthony, 58 F.3d at 625. We
therefore lack jurisdiction to evaluate this argument.
Ms. Thurston argues the Board erred by failing to
provide her a hearing. Ms. Thurston claims she requested
a hearing but “was scared out of it because [she] didn’t have
a lawyer.” Petitioner’s Informal Br. 4. On August 27, 2018,
the Board held a status conference with Ms. Thurston and
counsel for OPM. S. Appx. 19. During the status
conference, the administrative judge (AJ) noted Ms.
Thurston elected a hearing, described the hearing process
to Ms. Thurston, explained Ms. Thurston could elect to
continue with a hearing or rest on the record, and asked
Ms. Thurston to think about which option she would prefer
prior to the next status conference. Id. at 20. On
September 7, 2018, the Board held another status
conference. S. Appx. 24. After the AJ again described the
hearing process to Ms. Thurston, she elected to withdraw
her hearing request and rest on the record. Id. We see no
error in the AJ’s decision to not have a hearing after Ms.
Thurston withdrew her hearing request.
Ms. Thurston argues the Board erred in finding her
neck and back conditions were not part of her disability
claim. Petitioner’s Informal Br. 7. Ms. Thurston’s
statement of disability does not list any neck or back
conditions. S. Appx. 16. The Board explained it cannot
review medical conditions not listed in an applicant’s
statement of disability. Appx. 38–39. We see no error in
the Board’s determination.
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THURSTON v. OPM 5
Ms. Thurston argues the Board erred by failing to
consider her additional evidence submitted on June 22,
2021. Petitioner’s Informal Br. 4–7, 9; Thurston, PFR File,
Tab 11. The additional evidence includes: (1) two
separation letters from the USPS, (2) a social security
disability document, (3) two medical reports, (4) a services
agreement with a stress and anxiety disorder specialist, (5)
four bills for therapy sessions, and (6) seven receipts for
anxiety assistance services. Thurston, PFR File, Tab 11.
The Board may grant a petition for review if “[n]ew and
material evidence . . . is available that, despite the
petitioner’s due diligence, was not available when the
record closed.” 5 C.F.R. § 1201.115(d). In a footnote in the
Board’s final decision, the AJ found the additional evidence
was not new and material. Appx. 62–63 n.2.
Ms. Thurston submitted two USPS separation letters
dated March 8, 2019, and March 27, 2019, which listed
April 11, 2019, as her forthcoming separation date.
Thurston, PFR File, Tab 11 at 3–4, 5–6. The Board found
the letters were not new because they predated the close of
the record. Appx. 62 n.2. Ms. Thurston argues the record
closed on October 5, 2018, which makes the letters new
evidence. Petitioner’s Informal Br. 9. While the record in
the initial appeal did close in October 2018, when Ms.
Thurston filed the petition for review, the record reopened
during briefing. 5 C.F.R. § 1201.114(e), (k) (explaining the
record on review is open during briefing until the reply to
the response to the petition for review is due, which is ten
days after the service date of the response). Here, the
response to the petition for review was served via U.S. mail
on May 9, 2019. Thurston, PFR File, Tab 3. The record on
review, therefore, closed approximately ten days later. The
Board informed Ms. Thurston of the record closure via
letter dated May 9, 2019. Thurston, PFR File, Tab 2. Given
the record closed in May 2019, substantial evidence
supports the Board’s finding that the March 2019 letters
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THURSTON v. OPM 6
predated the May 2019 record closure and therefore were
not new evidence.
Ms. Thurston submitted a document from the Social
Security Administration (SSA) dated August 21, 2019,
showing the SSA deemed Ms. Thurston “entitled to
monthly disability benefits” starting December 2018.
Thurston, PFR File, Tab 11 at 7–8. The Board found the
SSA document was new but not material, noting “it does
not constitute significant or useful evidence” because it did
not specifically identify medical conditions. Appx. 62–63
n.2. Given no medical information was provided in the SSA
document, substantial evidence supports the Board’s
materiality finding.
Ms. Thurston submitted two medical reports,
Thurston, PFR File, Tab 11 at 9, 17–18; a services
agreement with Dr. Abel, id. at 10–12; and four bills from
Dr. Abel for therapy sessions, id. at 13–16. The Board
stated the evidence was not new because it was already
part of the record on review. Appx. 62–63 n.2. Ms.
Thurston had already submitted these documents with her
petition for review on April 29, 2019, which was before the
record on review closed. Thurston, PFR File, Tab 1. The
Board’s finding that the evidence was not new is therefore
supported by substantial evidence.
Ms. Thurston submitted seven receipts for payment to
a coaching program to help with anxiety. Thurston, PFR
File, Tab 11 at 19–27. The receipts were dated January
2019, August 2019, September 2019, October 2019,
November 2019, December 2019, and June 2020. Id. The
Board did not consider these documents because the
January 2019 receipt was not new, and the remaining six
receipts were not material because they covered a time
period during which Ms. Thurston was no longer a federal
employee. Appx. 62–63 n.2. Given the record on review
closed in May 2019 and Ms. Thurston was separated from
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THURSTON v. OPM 7
the USPS in April 2019, substantial evidence supports the
Board’s finding.
CONCLUSION
We have considered Ms. Thurston’s remaining
arguments and find them unpersuasive. We affirm the
Board’s denial of Ms. Thurston’s petition for review.
AFFIRMED
COSTS
No costs.
Case: 24-1519 Document: 19 Page: 7 Filed: 11/15/2024

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