Case: 23-2310 Document: 30 Page: 1 Filed: 04/11/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

NICHELLE HAYNES, Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT, Respondent ______________________

2023-2310 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-844E-21-0553-I-1. ______________________

Decided: April 11, 2024 ______________________

NICHELLE HAYNES, Phenix City, AL, pro se.

ELIZABETH MARIE DURFEE PULLIN, Commercial Litiga- tion Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BRIAN M. BOYNTON, ALBERT S. IAROSSI, PATRICIA M. MCCARTHY. ______________________

Before CHEN, HUGHES, and STARK, Circuit Judges. Case: 23-2310 Document: 30 Page: 2 Filed: 04/11/2024

2 HAYNES v. OPM

PER CURIAM. Nichelle Haynes appeals a decision of the Merit Sys- tems Protection Board (Board) that affirmed a decision by the Office of Personnel Management (OPM) denying her application for disability retirement under the Federal Em- ployees’ Retirement System (FERS). For the reasons dis- cussed below, we affirm. BACKGROUND Ms. Haynes worked for the Department of Veterans Af- fairs (VA) from December 13, 2015 until April 26, 2019 and from June 23, 2019 until her resignation, effective July 21, 2020. At the time of her resignation, Ms. Haynes was an Advanced Medical Support Assistant with the Atlanta VA Health Care System. Her duties included “scheduling pa- tient appointments, tracking, reviewing, and responding to electronic orders, consults, and other elements in the elec- tronic medical record and medical systems.” Appx. 2–3 (in- ternal quotation marks and citation omitted). 1 On September 5, 2020, Ms. Haynes applied for disabil- ity retirement under FERS based on the following condi- tions: post-traumatic stress disorder (PTSD), military sexual trauma (MST), retinitis pigmentosa, disc degenera- tive disease, sinusitis, bursitis hip pain, and chronic left knee pain. In her application, Ms. Haynes asserted that her conditions prevented her from sitting or standing for long periods of time, impaired her vision, and caused trau- matic flashbacks. On April 23, 2021, OPM issued an initial decision deny- ing Ms. Haynes’s application, finding that she did not meet the criteria for entitlement to FERS disability retirement

1 “Appx.” refers to the appendix filed with the govern-

ment’s informal brief. Case: 23-2310 Document: 30 Page: 3 Filed: 04/11/2024

HAYNES v. OPM 3

benefits. Ms. Haynes requested reconsideration of OPM’s initial decision, and OPM affirmed. Ms. Haynes then appealed to the Board. On November 29, 2021, an administrative judge of the Board affirmed OPM’s decision. The administrative judge determined that Ms. Haynes had not shown that she more likely than not had a deficiency in her performance, conduct, or attend- ance due to a disability, as required to receive FERS bene- fits. The Board subsequently denied Ms. Haynes’s petition for review of the AJ’s initial decision. Ms. Haynes timely appealed to this court. We have ju- risdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION This court’s scope of review for Board decisions is lim- ited by statute. We must affirm the Board’s decision unless it is “(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); Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). The scope of our review of Board decisions is further restricted in cases involving FERS disability retirement benefits. See 5 U.S.C. § 8461(d) (providing that OPM’s de- cisions on questions of disability and dependency “are final and conclusive and are not subject to review”). 2 In such

2 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. Because Case: 23-2310 Document: 30 Page: 4 Filed: 04/11/2024

4 HAYNES v. OPM

cases, we may not review “OPM’s factual findings and con- clusions on disability.” Anthony v. Off. of Pers. Mgmt., 58 F.3d 620, 624–25 (Fed. Cir. 1995) (holding that we may not review the Board’s factual findings that appellant had not proven that he was unable to perform the duties of his po- sition). We may, however, “address 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 de- termination.” Id. at 626 (internal quotations marks omit- ted) (citing Lindahl v. Off. of Pers. Mgmt., 470 U.S. 768, 791 (1985)). On appeal, Ms. Haynes contends that the Board did not properly account for the mental anguish she experienced in conjunction with her PTSD and MST, which were exacer- bated when she was physically assaulted on the job. Ms. Haynes asks this court to consider that she is a combat veteran with PTSD and alleges that she would not have resigned had she not been physically assaulted and emo- tionally abused on the job. While we are sympathetic to Ms. Haynes, these consti- tute the “factual findings and conclusions on disability” that we are prohibited from reviewing. Anthony, 58 F.3d at 625. Indeed, the Board considered the evidentiary rec- ord and concluded that Ms. Haynes’s evidence failed to show that her medical conditions caused deficiencies in her performance, attendance, or conduct. For example, the Board considered a letter and session notes from Ms. Haynes’s psychologist, the appellant’s 2020 perfor- mance appraisal, a written statement by the appellant’s supervisor, and other medical assessments in the record to conclude that Ms. Haynes failed to establish that her med- ical conditions were disabling for the purposes of FERS

Ms. Haynes’s application for disability retirement was made voluntarily, this exception does not apply. Case: 23-2310 Document: 30 Page: 5 Filed: 04/11/2024

HAYNES v. OPM 5

benefit entitlement. Because these are findings of fact that are outside the scope of our review, we cannot set aside the Board’s disability determinations. Furthermore, although we have considered Ms. Haynes’s other arguments regarding the Board’s con- clusion, we have identified no “procedural, legal or other fundamental error,” Anthony, 58 F.3d at 626, that would result in setting aside the Board’s decision. CONCLUSION We have considered Ms. Haynes’s remaining argu- ments and find them unpersuasive. For the reasons above, we affirm the Board’s decision. AFFIRMED COSTS No costs.