Danny Lee v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANNY LEE,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1737
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-844E-18-0754-I-1.
______________________
Decided: June 6, 2025
______________________
D ANNY L EE , Poway, CA, pro se.
J OSEPH ALAN P IXLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by L ISA
L EFANTE D ONAHUE, P ATRICIA M. MCC ARTHY , BRETT
SHUMATE.
______________________
Before P ROST , REYNA, and T ARANTO, Circuit Judges.
Case: 24-1737 Document: 31 Page: 1 Filed: 06/06/2025

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LEE v. OPM 2
P ER CURIAM .
Danny Lee appeals pro se a final order of the Merit Sys-
tems Protection Board denying his application for disabil-
ity retirement under the Federal Employees’ Retirement
System. For the below reasons, we affirm.
BACKGROUND
From September 2009 until his resignation in
July 2018, appellant Danny Lee served as a “Legal Assis-
tant/Case Intake Technician,” and then as a “Legal Assis-
tant/Senior Case Technician,” with the Social Security
Administration (“SSA”). Appx2.1 On November 3, 2017,
Mr. Lee applied to the Office of Personnel Management
(“OPM”) for disability retirement under the Federal Em-
ployees’ Retirement System (“FERS”) due to “avascular ne-
crosis of the left hip with collapse.” Id.
On August 1, 2018, OPM denied Mr. Lee’s application
for disability retirement. Appx8. OPM found that Mr. Lee
did not show he was disabled under FERS because he failed
to show that his medical condition was incompatible with
useful and efficient service, or retention, in his position. Id.
Mr. Lee sought reconsideration of OPM’s decision and pro-
vided OPM with additional documentation of his hip is-
sues. Appx8–10. OPM sustained its August 1, 2018 denial.
Appx10.
On September 4, 2018, Mr. Lee appealed OPM’s denial
to the Merit Systems Protection Board (“MSPB” or
“Board”). Id. He argued that OPM wrongly denied him
disability retirement. Appx10–11. He noted he suffered
from hip pain, requested reasonable accommodations at
work on numerous occasions, which were all denied, and
was given work duties that caused him pain. Appx11.
1 “Appx” refers to the appendix accompanying the
appellee’s responding brief.
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LEE v. OPM 3
The administrative judge (“AJ”) assigned to his case
concluded that Mr. Lee failed to establish by preponderant
evidence two elements of his FERS disability retirement
claim: (1) that his condition led to (a) a deficiency in perfor-
mance, conduct, or attendance, or (b) an inability to render
“useful and efficient service or retention in his former posi-
tion”; and (2) that accommodation of his medical condition
in the position he held was unreasonable. Appx14–15,
Appx17–18, Appx24. As to the first element, the AJ found
a lack of corroborating evidence demonstrating “impaired
attendance, conduct, or performance as a basis for FERS
disability.” Appx20. The AJ also found that the record
lacked persuasive evidence that his hip condition proved
incompatible with useful and efficient service. Id. As to
the second element, the AJ rejected Mr. Lee’s allegations of
denied accommodations as contradicted by the record. See
Appx19, Appx23.
Mr. Lee petitioned for review of the AJ’s decision to the
full Board. Appx38. The Board denied review and affirmed
the AJ’s decision. Appx39–44. Mr. Lee appeals.
D ISCUSSION
I.
We ordered the parties to address whether we have ju-
risdiction over this appeal. We did so because Mr. Lee
noted a claim of discrimination in his Form 10 Statement
of Discrimination filed in this court. Upon review of the
parties’ briefs, we conclude that we have jurisdiction over
Mr. Lee’s appeal, which is an appeal from an MSPB final
decision disallowing his application for disability retire-
ment. 5 U.S.C. § 7703(b)(1)(A); 28 U.S.C. § 1295(a)(9).
A “mixed case” occurs “[w]hen an employee complains
of a personnel action serious enough to appeal to the MSPB
and alleges that the action was based on discrimination.”
Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 424 (2017) (al-
teration in original) (internal quotation marks omitted).
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LEE v. OPM 4
The proper venue for review of an MSPB decision concern-
ing a mixed case is federal district court. Id. at 432. Thus,
the question here is, in Mr. Lee’s appeal to the MSPB, did
Mr. Lee raise a discrimination allegation against OPM
with his claim that OPM wrongly denied him disability re-
tirement? The answer is no, although Mr. Lee noted oth-
erwise in his Form 10.
Form 10 asked Mr. Lee whether he argued before the
MSPB that “the adverse employment action” was attribut-
able to discrimination. ECF No. 4 at 1 (emphasis added).
In other words, Form 10 asked whether, before the MSPB,
Mr. Lee argued that OPM’s adverse action of denying him
disability retirement was attributable to discrimination by
OPM. Id. Mr. Lee marked “Yes.” Id. But as the govern-
ment notes in its response brief, this is not true. Response
Br. 8–10. Before the MSPB, Mr. Lee alleged discrimination
against the SSA, his former employer. See Appx28 n.13.
The Board did not address this discrimination claim be-
cause it was not part of Mr. Lee’s action against OPM.2 Id.
Similarly, it is not a part of this appeal. See Lorillard To-
bacco Co. v. Reilly, 533 U.S. 525, 553 (2001) (declining to
reach an issue that was not decided below); see also Nassar
v. OPM, 2025 WL 415457, at *1 n.4 (Fed. Cir. Feb. 6, 2025).
Mr. Lee’s allegation of discrimination against a different
agency not subject to this appeal does not turn this appeal
into a “mixed case.” We retain jurisdiction over this appeal.
II.
2 The Board noted that if Mr. Lee wanted to pursue
discrimination claims against SSA, he would “need to raise
them in an appeal of an otherwise appealable action
against SSA, or satisfy prerequisites for an individual right
of action appeal as applicable.” Appx28 n.13.
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LEE v. OPM 5
Turning to the merits of Mr. Lee’s appeal, Mr. Lee ar-
gues that the Board overlooked and did not properly con-
sider certain evidence. See, e.g., Informal Br. 2–3 (noting
that the Board did not consider his medical records). We
reject Mr. Lee’s argument. The Board considered the evi-
dence Mr. Lee flags and ultimately determined that
Mr. Lee’s hip condition did not result in a qualifying disa-
bility under FERS. See Appx15–27 (AJ’s decision);
Appx38–44 (Board’s final decision). To the extent Mr. Lee
challenges the Board’s weighing of the evidence, this chal-
lenge falls outside our limited scope of review in disability
retirement appeals, which is substantially narrower than
our review under the Administrative Procedure Act. An-
thony v. Off. of Pers. Mgmt., 58 F.3d 620, 624–25 (Fed. Cir.
1995); see also Vanieken-Ryals v. Off. of Pers. Mgmt., 508
F.3d 1034, 1038 (Fed. Cir. 2007). We may review appeals
from a disability retirement determination that implicate
procedural, legal, or other fundamental errors “going to the
heart of the administrative determination.” Lindahl v. Off.
of Pers. Mgmt., 470 U.S. 768, 791 (1985); Vanieken-Ryals,
508 F.3d at 1038. We may not, however, review factual
findings concerning disability determinations, which are
“final and conclusive” and “not subject to review.” 5 U.S.C.
§ 8347(c); Lindahl, 470 U.S. at 791. Thus, “we must reject
challenges to the Board’s factual determinations on physi-
cal disability.” Anthony, 58 F.3d at 625.
Mr. Lee also argues that the Board failed to consider
several laws. Informal Br. 2 (listing “Due process,” “Dis-
covery,” “Federal disability retirement,” “Family Medical
Leave Act,” “Weingarten Rights,” and “Loudermill
Rights”). Even under a lenient reading, however, Mr. Lee’s
brief presents no argument as to why the Board violated
these statutes or “[r]ights,” most of which are irrelevant to
this appeal. Id. at 2–3. Upon review of the Board’s deci-
sion, we see no legal error implicating these laws. We re-
ject Mr. Lee’s legal challenge.
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LEE v. OPM 6
CONCLUSION
We have considered Mr. Lee’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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