[5]
July 11, 2002
[6]
Before Newman, Circuit Judge, Plager, Senior Circuit Judge,
and Gajarsa, Circuit Judge.
[7]
The opinion of the court was delivered by: Per Curiam
[8]
NOTE: Pursuant to Fed. R. 47.6, this disposition is not
citeable as precedent. It is a public record. This disposition will appear in
tables published periodically.
[9]
The petitioner, Michael W. Townsend, seeks review of the
final decision of the Merit Systems Protection Board ("the Board")
affirming a determination of the Office of Personnel Management
("OPM"), in which OPM denied Mr. Townsend's application for
disability retirement pursuant to the Federal Employees Retirement System
("FERS"). Townsend v. Office of Pers. Mgmt., No. CH-844E-01-0120-I-1,
slip op., (MSPB Mar. 30, 2001). For the reasons explained below, we affirm.
[10]
I. BACKGROUND
[11]
Mr. Townsend was employed with the Forest Service
("Agency") as a law enforcement officer. Id. at 2. While he was on
patrol in August 1993, Mr. Townsend shot and killed a man who had physically
confronted him. Id. at 3. The police, FBI, and Forest Service found that Mr.
Townsend acted properly, in self defense. Id.
[12]
Following this incident, Mr. Townsend remained off work for
some time, but worked periodically during the five years after the shooting.
Id. Upon returning to work, Mr. Townsend began to experience nervousness,
tension, headaches, flashbacks. Id. The agency referred him to a clinical
psychologist, Dr. David Lanier, who had examined him in a pre-employment
psychological screening in 1991. Dr. Lanier examined Mr. Townsend following the
shooting incident, in September 1993. Id. Dr. Lanier treated Mr. Townsend for
several months. He noted that Mr. Townsend demonstrated substantial anxiety,
constriction of emotion, guilt, depression, and obsession regarding the
incident. Id. Dr. Lanier treated Mr. Townsend on four occasions in 1995 for the
same reasons. In May 1998, Dr. Lanier again began a series of treatments of Mr.
Townsend, and diagnosed Mr. Townsend's condition as a generalized anxiety
disorder and post-traumatic stress disorder ("PTSD"). Dr. Lanier
recommended that Mr. Townsend seek employment in a field in which he would not
engage in activities triggering an association with the shooting. Id.
[13]
Mr. Townsend attempted to obtain an accommodation from the
Agency, such as a transfer. In a letter dated June 28, 1999, Dr. Lanier
recommended two accommodations: that Mr. Townsend not work alone in remote
areas, particularly the area of the shooting, and, that Mr. Townsend not work
under the supervision "of certain personnel with whom he has worked in
recent years." Id. at 4. The agency failed to make either of these
accommodations. Id.
[14]
Mr. Townsend eventually ceased working at the Forest
Service. After the agency determined that it was unable to provide the
accommodations recommended by Dr. Lanier, Mr. Townsend began working in another
position as a "partially disabled" individual, with the assistance of
the Department of Labor, Office of Workers' Compensation Programs. Id. While
receiving workers' compensation benefits, Mr. Townsend accepted a position as a
Deputy Sheriff. Id. In a letter dated November 17, 1999, an Agency medical
doctor found Mr. Townsend "unable to perform the essential functions of
his job" as a law enforcement officer. Id. Dr. Lanier again stated that
Mr. Townsend would be able to work as a law enforcement officer only if the
employer could provide both previously recommended accommodations. Id. Another
doctor, Dr. Bennett Asher, M.D., examined Mr. Townsend. Id. He concluded that
although various physical test results were negative, Mr. Townsend should
"get out of law enforcement work" because of PTSD. On September 20,
2000, the Agency removed Mr. Townsend effective October 6, 2000, based on his
continuing inability to perform the critical duties of his position, and the
agency's inability to accommodate his disability.
[15]
Following his removal, Mr. Townsend applied for disability
retirement under the Federal Employee Retirement System (FERS). Id. at 1. The
Office of Personnel Management (OPM) denied his application for a disability
retirement under FERS. Id. Following OPM's denial, Mr. Townsend appealed to the
Merit Systems Protection Board (MSPB). Id. An Administrative Judge (AJ) of the
MSPB held a hearing to determine whether OPM properly determined that Mr.
Townsend was not entitled to a disability retirement. Id.
[16]
The AJ concluded that Mr. Townsend was not entitled to a
disability retirement. Although his removal raised a presumption of entitlement
to a disability retirement, id. at 7, the AJ found that OPM had rebutted the
presumption, by producing evidence sufficient to support a finding that Mr.
Townsend was not entitled to disability retirement benefits, id. at 5. This
evidence consisted, among other things, of a statement by Dr. Bruce N. Butler,
M.D., who reviewed the medical documentation in Mr. Townsend's case and
concluded that it failed to support a finding of disability because the medical
documentation lacked details regarding medication, counseling attended,
progress notes from treatment, or restrictions from occupational duties. Id.
Dr. Butler stated that the medical evidence failed to clarify why Mr.
Townsend's employment as a sheriff (another law enforcement position with
similar duties) fails to trigger PTSD. Id. The AJ also noted that Mr. Townsend
had testified that in the five-year period following the shooting incident, his
performance was evaluated as fully successful. Id. The AJ noted that Mr.
Townsend's supervisor, Glen Thomas, identified only poor attendance as
precluding him from performing at a fully successful level. The AJ concluded
that the evidence introduced by OPM was sufficient to rebut the presumption
that Mr. Townsend was entitled to a disability retirement, shifting to Mr.
Townsend the burden of proving his entitlement by preponderant evidence. Id.
[17]
The AJ held that Mr. Townsend failed to meet this burden.
Because the AJ determined that Mr. Townsend failed to prove by preponderant
evidence that he is unable to perform useful and efficient service as a law
enforcement officer, the AJ affirmed OPM's denial of Mr. Townsend's application
for disability retirement. Id. at 6. Although Mr. Townsend submitted evidence
from three doctors stating that he is disabled from performing useful and
efficient service, the AJ found that the letters failed to identify specific
duties he is unable to perform. Id. The AJ also noted that Mr. Townsend
performs similar duties as a sheriff, and that for approximately five years
immediately following the shooting incident, his performance was fully
successful. Id. The AJ stated that although the record contained evidence that
Mr. Townsend experienced flashbacks based on working near the location of the
incident or discussing the incident with supervisors, Mr. Townsend failed to
demonstrate whether treatment including counseling or medication could control
his symptoms, and failed to demonstrate that a job accommodation was
impracticable. Id.
[18]
Before affirming the OPM's denial, the AJ stated that:
"poor attendance alone does not constitute a basis on which to grant a
disability retirement." Id. (citing Wilkey-Marzin v. Office of Pers.
Mgmt., 82 MSPR 200, 208 (1999)). The AJ also stated that "[t]he fact that
the appellant may have suffered from stress, anxiety, and even depression does
not support a finding of disability retirement in the absence of evidence
showing he is unable to perform the specific duties of his position." Id.
(citing Burckley v. Office of Pers. Mgmt., 80 MSPR 617, 621 (1999)). The AJ
then affirmed the denial of Mr. Townsend's application for disability
retirement. Id.
[19]
Mr. Townsend filed a timely petition for review before the
Board. The AJ's decision became the final decision of the Board following its
denial of this petition for review. See Townsend v. Office of Pers. Mgmt.,
CH-844E-01-0120-I-1, slip op. (MSPB Aug. 29, 2001) (citing 5 C.F.R. § 1201.115)
(order denying petition for review).
[20]
This appeal follows. We have jurisdiction pursuant to 5
U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
[21]
II. DISCUSSION
[22]
This court's authority to review the Board's decision is
strictly limited by statute. See 5 U.S.C. §§ 8461(d), 8461(e) (2000). OPM's
factual findings and conclusions regarding physical disability, may be reviewed
only by the Board, not by this court. Id.; see also Anthony v. Office Pers.
Mgmt., 58 F.3d 620, 624-45 (Fed. Cir. 1995) (citing Lindhal v. Office Pers.
Mgmt., 470 U.S. 768, 791 (1985)). The same is true of OPM's factual findings
regarding mental disability where the former employee, rather than the agency,
applied for disability retirement. § 8461(e)(2) (2000). Because Mr. Townsend,
rather than the Forest Service, applied for disability retirement, our review
is limited to determining "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." Lindhal, 470 U.S. at 791 (internal quotations omitted).
[23]
Many of the alleged errors pertain to factual
determinations, which this court cannot review. Mr. Townsend alleges that the
Board improperly interpreted the medical evidence regarding his disability, by
crediting Dr. Butler's conclusory statements and misapprehending Dr. Lanier's
explanation of the triggers of Mr. Townsend's PTSD. These alleged errors are
factual; they pertain to the Board's determination of whether Mr. Townsend's
medical condition was incompatible with his ability to serve as a law
enforcement officer. This court lacks authority to review such facts. Mr.
Townsend also contends that the Board erred in concluding that his duties as a
sheriff are similar to those he performed as a law enforcement officer with the
Forest Service, and that his current employment as a sheriff is therefore
evidence that he is not so disabled that he cannot perform the functions of a
law enforcement officer. This is likewise an allegation of factual error. As
such, this court cannot review this aspect of the Board's determination.
[24]
Mr. Townsend also contends that the Board made two legal
errors. Although we may review these alleged errors to determine whether the
Board misconstrued the governing law, we hold that it did not.
[25]
First, Mr. Townsend states that the Board failed to consider
the fact that the agency terminated him due to a medical disability. The Board
expressly noted, however, that Mr. Townsend was removed, "effective
October 6, 2000, based on his continuing inability to perform the critical
duties of his position and the agency's inability to accommodate his
disability." Townsend v. Office Pers. Mgmt., No. CH-844E-01-0120-I-1, slip
op. at 4, (MSPB Mar. 30, 2001).
[26]
The Board proceeded to apply the correct legal standard. It
noted that the removal of an employee for inability to perform the essential
functions of his or her position creates a presumption that the employee is
entitled to a disability retirement. Id.; see also Brunner v. Office Pers.
Mgmt., 996 F.2d 290, 294 (Fed. Cir. 1993). The Board observed that the
presumption placed the burden of production on OPM, but concluded that OPM
produced evidence sufficient to rebut the presumption. Id. at 5. After
determining that OPM rebutted the presumption, the Board stated that the burden
then shifted to Mr. Townsend to establish, by preponderant evidence, his
entitlement to a disability retirement. Id. Although Mr. Townsend disputes
whether OPM introduced evidence sufficient to rebut the presumption, he does not
dispute that the Board applied the correct legal standard assuming, as we must,
that the Board's factual assessment of the strength of OPM's evidence was
correct.
[27]
Second, Mr. Townsend contends that the Board committed legal
error when it stated that "poor attendance alone does not constitute a
basis on which to grant a disability retirement." Townsend v. Office Pers.
Mgmt., No. CH-844E-01-0120-I-1, slip op. at 6, (MSPB Mar. 30, 2001). Mr.
Townsend correctly points out that the applicable regulation requires that:
[28]
The individual must, while employed in a position subject to
FERS, have become disabled because of a medical condition, resulting in a
deficiency in performance, conduct, or attendance, or if there is no such
deficiency, the disabling medical condition must be incompatible with either
useful and efficient service or retention in the position. 5 C.F.R. §
844.103(a)(2) (emphasis added).
[29]
The Board's statement, however, was consistent with this
regulation. Poor attendance alone is insufficient, unless it is caused by the
disabling condition. The Board made the challenged statement in the context of
making the ultimate determination that the medical evidence of record failed to
contain a clear and reasoned explanation of how Mr. Townsend's medical
condition affected his specific work requirements. In this regard, the Board
noted that Mr. Townsend's supervisor rated his job performance as fully
successful during the five years immediately following the shooting, and at the
time of Mr. Townsend's removal, his supervisor indicated that only poor
attendance kept Mr. Townsend from continuing to perform at a fully successful
level. Townsend v. Office Pers. Mgmt., No. CH-844E-01-0120-I-1, slip op. at 5,
(MSPB Mar. 30, 2001). We understand the challenged statement to mean that, as a
factual matter, the evidence failed to prove that Mr. Townsend's medical
condition - as opposed to some other factor - caused his poor attendance. We
cannot disturb this factual conclusion. Consequently, the Board's statement
about attendance did not misconstrue the governing law.
[30]
The Board committed no error in construing the governing
law, and this court cannot re-examine the Board's factual determinations. For
these reasons, the final decision of the Board is affirmed.
[31]
No costs.
</body