Felicia Cunningham v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FELICIA CUNNINGHAM,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2025-1036
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-844E-20-0572-I-1.
______________________
Decided: July 15, 2025
______________________
F ELICIA CUNNINGHAM , Oxford, AL, pro se.
BLAKE W ILLIAM COWMAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
T ARA K. HOGAN, P ATRICIA M. M CCARTHY , Y AAKOV ROTH .
______________________
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CUNNINGHAM v. OPM 2
Before M OORE, Chief Judge, STOLL , Circuit Judge, and
WANG, District Judge.1
P ER CURIAM .
Felicia Cunningham seeks review of a final decision of
the Merit Systems Protection Board, which affirmed the
Office of Personnel Management’s determination that she
did not meet the legal requirements for disability retire-
ment. For the following reasons, we affirm.
BACKGROUND
I
Ms. Cunningham worked for the Department of Veter-
ans Affairs as a Veterans Service Representative (VSR)
from June 2015 until June 2019, when she resigned. In
2019 prior to her resignation, Ms. Cunningham applied for
disability retirement under the Federal Employees’ Retire-
ment System (FERS).
In Ms. Cunningham’s statement of disability, which
she filed shortly before her resignation, she identified “mi-
graine headaches and anxiety” as her disabling conditions.
SAppx22.2 Ms. Cunningham explained that “[her daily]
tension migraine headaches” resulted from “the demands
of [her VSR] position” and “[t]he stress of the VSR position
has aggravated [her] headaches and [she] cannot perform
[her] duties any longer.” Id. She also noted her
“depr[e]ssive disorder [wa]s . . . aggravated by the de-
mands of” her position. Id.
1 Honorable Nina Y. Wang, District Judge, United
States District Court for the District of Colorado, sitting by
designation.
2 “SAppx” refers to the Supplemental Appendix sub-
mitted by Respondent at ECF No. 25.
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CUNNINGHAM v. OPM 3
On December 9, 2019, the Office of Personnel Manage-
ment (OPM) denied Ms. Cunningham’s application, “find-
ing that she did not meet the legal requirements for
disability retirement.” SAppx2. Ms. Cunningham sought
reconsideration, and OPM issued a final decision affirming
its initial decision. Ms. Cunningham appealed OPM’s de-
cision to the Merit Systems Protection Board.
II
The administrative judge affirmed OPM’s determina-
tion that Ms. Cunningham’s documentation “was insuffi-
cient to establish entitlement to disability retirement.”
SAppx7–8. The administrative judge started his analysis
by noting that Ms. Cunningham could establish eligibility
for disability retirement by either “(1) . . . showing that the
medical condition from which she suffers caused a defi-
ciency in performance, attendance, or conduct; or
(2) . . . showing that the medical condition is incompatible
with useful and efficient service or retention in her posi-
tion.” SAppx3 (citing 5 C.F.R. § 831.1203(a)(2)).
First, addressing performance or conduct deficiencies,
the administrative judge acknowledged Ms. Cunningham’s
manager indicated that her “performance and conduct
were satisfactory” and that Ms. Cunningham “produced no
persuasive evidence or argument to contradict her supervi-
sor’s conclusions.” SAppx8. The administrative judge also
explained that, although Ms. Cunningham’s “medical con-
ditions may . . . have impacted her performance and con-
duct (e.g., her attendance) to some degree, there is simply
no record evidence that [her performance and conduct] de-
scended below a fully successful level.” Id.
Second, addressing useful and efficient service, the ad-
ministrative judge explained that Ms. Cunningham’s med-
ical documentation did not state “that she was . . . unable
to perform useful and efficient service. Nor d[id] the med-
ical documentation explain how any medical conditions af-
fected her specific work requirements as a VSR.” Id. The
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CUNNINGHAM v. OPM 4
administrative judge also considered Ms. Cunningham’s
hearing testimony, noting she “identified no specific work
requirements that her condition prevented her from ful-
filling” and that the subjective evidence that she was “un-
able to fulfill specific job requirements is unsupported by
competent medical evidence to that effect.” SAppx8–9. In
sum, the administrative judge found that “none of
[Ms. Cunningham’s] medical documentation . . . indicates
any sort of work restriction.” SAppx9.
In evaluating the medical evidence, the administrative
judge recognized “that the medical evidence reflects, at
best, inconsistent use of prescribed medications by”
Ms. Cunningham. Id. The administrative judge deter-
mined that Ms. Cunningham’s treatment notes from 2017
and 2018 “show[ed] that [she] was quite late in beginning
her Floricet prescription for migraines, and that she used
it only occasionally thereafter,” and her 2019 treatment
notes “stated [Ms. Cunningham] had not yet started taking
amitriptyline and Maxalt” and that she “dropped Topomax
because it made her feel funny.” Id. (internal quotation
marks omitted). The administrative judge was “not per-
suaded [Ms. Cunningham] followed her doctors’ directions
closely enough to warrant an award of disability retire-
ment benefits.” SAppx10.
The administrative judge also considered that
Ms. Cunningham “was granted Department of Veterans
Affairs (DVA) disability benefits (70%) in August 2019” but
explained that given the lack of “other record evidence
meeting the applicable criteria[] . . . the DVA’s decision to
grant benefits to [Ms. Cunningham] is insufficient to estab-
lish that she is entitled to disability retirement under
FERS.” Id.
Finally, the administrative judge considered Ms. Cun-
ningham’s claims of “missed work due to her medical con-
ditions” but explained “there is no evidence of record
quantifying her absences” and “her supervisor did not
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CUNNINGHAM v. OPM 5
report an attendance problem.” Id. The administrative
judge concluded “whatever work absences the appellant
may have experienced do not overcome the lack of record
evidence concerning the effect of her medical condition on
her specific job duties.” Id. After analyzing the record and
Ms. Cunningham’s arguments, the administrative judge
concluded Ms. Cunningham did not demonstrate “by pre-
ponderant evidence . . . [that] her medical condition(s)
[were] incompatible with useful and efficient service or re-
tention in her position.” SAppx11.
Ms. Cunningham petitioned for review of the adminis-
trative judge’s initial decision. In her petition she con-
tended that “[d]ue process was ignored” because OPM filed
the agency record two days late and “[OPM’s] response
should have been objected [to] by [the administrative
judge].” SAppx41. She also indicated that she had “docu-
ments or evidence . . . important to [her] appeal that were
not filed with the judge before the record closed,” but she
failed to attach the documents and evidence as instructed.
Id. Ms. Cunningham also indicated that her “mental is-
sues” were relevant and the administrative judge over-
looked her primary doctor’s medical opinion. Id.
III
The Board denied Ms. Cunningham’s petition and af-
firmed the initial decision. The administrative judge’s ini-
tial decision thus became the Board’s final decision
pursuant to 5 C.F.R. § 1201.113(b).
The Board first addressed Ms. Cunningham’s mental
disabilities including depression and anxiety caused by mi-
graine headaches. SAppx26. The Board “considered
whether the record evidence would support a finding that
[Ms. Cunningham] was disabled” because of her mental
disabilities, but explained “the mere diagnosis of depres-
sion or an anxiety disorder [without more] is not informa-
tive enough to allow either OPM or the Board to
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CUNNINGHAM v. OPM 6
conclude . . . that an employee is disabled from useful and
efficient service.” Id.
The Board then turned to OPM’s filing of the OPM file
two days late and observed that, at the prehearing confer-
ence, “the administrative judge specifically noted that
OPM’s file was in evidence and provided [Ms. Cunning-
ham] an opportunity to make corrections to the summary,”
but she did not “object to the inclusion of OPM’s file in evi-
dence, and it is too late for her to do so on review.”
SAppx27. The Board also explained that, “[i]f OPM’s file
was not accepted into the record, the record would contain
almost no medical evidence regarding [Ms. Cunningham’s]
conditions,” and “[b]ecause it is her burden to prove her en-
titlement to disability retirement benefits, the lack of such
evidence could have harmed [her].” SAppx27 n.3. The
Board concluded Ms. Cunningham failed to demonstrate
“how the actions taken by the administrative judge ad-
versely affected her substantive rights” despite the un-
timely filing. SAppx27.
Ms. Cunningham petitions for review of the Board’s fi-
nal decision. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
On appeal, Ms. Cunningham contends: (1) “OPM
should not have been allowed to render evidence . . . after
the deadline,” Pet. Informal Br. 4; (2) she “should have
been [given] an opportunity to upload new documents . . .
[and] new medical evidence,” Pet. Informal Br. 3; (3) “OPM
took parts of [her] medical [evidence but] not all [of her]
medical evidence,” Pet. Informal Br. 4; (4) the Board erred
in concluding “medical evidence of mental diagno[s]is
wasn’t enough to prove [a] medi[c]al condition,” Pet. Infor-
mal Br. 3; and (5) we should grant her retirement disability
because the Social Security Administration and DVA “de-
termined [she] was not able to work due to [her] major
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CUNNINGHAM v. OPM 7
depressive disorder [and] chronic migra[ine]s,” Pet. Infor-
mal Br. 4. We address each issue in turn.
Generally, our review of the Board’s decisions is lim-
ited. We must affirm the Board’s decision unless we con-
clude that it is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). Substantial ev-
idence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Shapiro
v. Social Sec. Admin., 800 F.3d 1332, 1336 (Fed. Cir. 2015)
(citation omitted).
Our jurisdiction is further limited in the FERS disabil-
ity retirement context, as we are “precluded by 5 U.S.C.
§ 8461(d) from reviewing the factual underpinnings of
physical disability determinations, but may address
whether there has been a ‘substantial departure from im-
portant procedural rights, a misconstruction of the govern-
ing legislation, or some like error going to the heart of the
administrative determination.’” Anthony v. Off. of Pers.
Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl
v. Off. of Pers. Mgmt., 470 U.S. 768, 791 (1985) (cleaned up)
(further citation omitted)); see also id. (explaining that pe-
titioner “simply assert[ed] that the Board wrongly weighed
the evidence, a claim we may not address”); Davis v. Off. of
Pers. Mgmt., 470 F.3d 1059, 1060 (Fed. Cir. 2006) (“Our re-
view of a Board decision that affirms OPM’s denial of a dis-
ability retirement application is extremely limited. We
cannot review the factual underpinnings of a disability de-
termination.”).
Regarding Ms. Cunningham’s first and second argu-
ments, that the Board erred by allowing OPM to submit
evidence after the deadline and that she should have been
afforded an opportunity to upload new documents and new
medical evidence, “[p]rocedural matters relative to
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CUNNINGHAM v. OPM 8
discovery and evidentiary issues fall within the sound dis-
cretion of the board and its officials.” Curtin v. Off. of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). We “will not
overturn the board on such matters unless an abuse of dis-
cretion is clear and is harmful.” Id.
Here, we cannot say the Board abused its discretion in
accepting OPM’s untimely filing by two days because
Ms. Cunningham did not “object to the inclusion of OPM’s
file in evidence,” SAppx27, and without the filing “the rec-
ord would contain almost no medical evidence regarding
[Ms. Cunningham’s] conditions,” SAppx27 n.3. In these
circumstances, we cannot say there has been “a substantial
departure from important procedural rights.” Anthony,
58 F.3d at 625 (internal quotations and citation omitted).
Nor can we say that the Board erred in not admitting
any possible evidence Ms. Cunningham would have offered
because she neither provided the evidence nor explained
why the evidence was not presented before the record
closed. Although Ms. Cunningham’s petition for review in-
dicates she had additional documents to present, she did
not “include an explanation of why the evidence or argu-
ment was not presented before the record below closed” as
is required under 5 C.F.R. § 1201.114(b). Her only expla-
nation of why she did not submit her documents or evi-
dence earlier was “[p]lease consider [the] timeline of filed
pleading by me and OPM and extension order.” SAppx42.
Given the absence of any explanation why she did not pre-
sent the evidence earlier, as well as Ms. Cunningham’s fail-
ure to provide the evidence to the Board with her petition
for review, we cannot say the Board abused its discretion.
Brenneman v. Off. of Pers. Mgmt., 439 F.3d 1325, 1328
(Fed. Cir. 2006) (“In the absence of an explanation for the
delay in obtaining the evidence in question, the appellant
‘has not shown that he exercised due diligence or ordinary
prudence to obtain the evidence.’” (citation omitted)).
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CUNNINGHAM v. OPM 9
As to Ms. Cunningham’s third argument, that OPM’s
agency record was somehow incomplete, it does not appear
that Ms. Cunningham presented this argument to the
Board. Our “court has long held that appellants may not
raise issues on appeal for the first time.” Kachanis v. Dep’t
of Treasury, 212 F.3d 1289, 1293 (Fed. Cir. 2000). Alt-
hough Ms. Cunningham objected to the timeliness of
OPM’s filing in her petition for review, she did not argue
that the file was incomplete, other than noting she had ad-
ditional evidence as discussed above. See generally
SAppx41–43. Because this argument about the complete-
ness of OPM’s filing was raised for the first time on appeal,
we decline to consider it.
Finally, regarding Ms. Cunningham’s fourth and fifth
arguments, that the Board gave her mental diagnoses in-
sufficient weight and that the Board should have granted
her disability retirement in light of her awards of Social
Security Disability Insurance and DVA benefits, we lack
jurisdiction to do so. Anthony, 58 F.3d at 625 (“OPM’s fac-
tual findings and conclusions on disability may be reviewed
only by the Board (under subsection (e)(1)) and not by this
court.”).3
To the extent that Ms. Cunningham argues that the
Board legally erred by failing to consider her diagnoses, the
Board explained “the mere diagnosis of depression or an
3 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. Anthony,
58 F.3d at 624–25. This exception is not implicated here
because Ms. Cunningham voluntarily resigned from her
position.
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CUNNINGHAM v. OPM 10
anxiety disorder is not informative enough to allow either
OPM or the Board to conclude, based on the diagnosis
alone, that an employee is disabled from useful and effi-
cient service.” SAppx26. The Board considered Ms. Cun-
ningham’s diagnoses, and we lack jurisdiction to review the
weight the Board assigned Ms. Cunningham’s diagnoses.
Although we are sympathetic to Ms. Cunningham’s re-
quest for disability retirement in light of her awards of So-
cial Security Disability Insurance and DVA benefits, we
lack jurisdiction over the factual findings she challenges
and do not perceive any “substantial departure from im-
portant procedural rights, a misconstruction of the govern-
ing legislation, or some like error ‘going to the heart of the
administrative determination’” in the Board’s decision.
Anthony, 58 F.3d at 626 (quoting Lindahl, 470 U.S.
at 791).
CONCLUSION
We have considered Ms. Cunningham’s remaining ar-
guments and are not persuaded. For the foregoing reasons,
we affirm the decision of the Board.
AFFIRMED
COSTS
No costs.
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