Tracey Denise Garland v. Office of Personnel Management

United States Court of Appeals
for the Federal Circuit
______________________
TRACEY DENISE GARLAND,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-2291
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-831E-17-0792-I-1.
______________________
Decided: April 22, 2026
______________________
CHRISTOPHER H UGH BONK, Gilbert Employment Law,
PC, Silver Spring, MD, argued for petitioner. Also repre-
sented by ANDREW P ERLMUTTER.
L AURA O FFENBACHER ARADI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by CLAUDIA B URKE, A NDREW K LOSTER, P ATRICIA M.
MCCARTHY , BRETT SHUMATE; EMILY WARNER , Office of
General Counsel, Office of Personnel Management, Wash-
ington, DC.
______________________
Case: 24-2291 Document: 39 Page: 1 Filed: 04/22/2026

-- 1 of 14 --

GARLAND v. OPM 2
Before T ARANTO, CLEVENGER , and STOLL , Circuit Judges.
STOLL , Circuit Judge.
Tracey Garland petitions for review of the Merit Sys-
tems Protection Board’s final order, affirming the Office of
Personnel Management’s denial of Ms. Garland’s applica-
tion for disability retirement. In particular, she asks us to
address whether in disability retirement determinations,
OPM may overcome a claimant’s presumption of disability
under Bruner v. Office of Personnel Management, 996 F.2d
290 (Fed. Cir. 1993), simply by asserting a lack of “objec-
tive” medical evidence in support of a disability determina-
tion. Because we hold an assertion of a lack of “objective”
medical evidence does not on its own overcome the Bruner
presumption, we reverse the Board’s final order.
BACKGROUND
Ms. Garland worked as a Legal Administrative Spe-
cialist in Retirement Services for the Office of Personnel
Management (OPM). She was diagnosed with major de-
pressive disorder, generalized anxiety disorder, and insom-
nia in 2009. For treatment of her conditions, Ms. Garland
was under the care of psychiatrist Dr. Richard Greenberg.
Dr. Greenberg determined Ms. Garland was unable to
work starting on October 9, 2014.
In April 2015, OPM proposed Ms. Garland’s removal
after determining that Ms. Garland was “medically unable
to perform the essential functions of [her] position.”
J.A. 126. “More specifically, while OPM recognize[d] that
[Ms. Garland] ha[d] a disability, [her] disability substan-
tially limit[ed] major life activities involving mental and
emotional processes including thinking, concentrating, and
interacting with others, all of which [were] part or all of the
essential functions of [her] current or any other job within
OPM.” Id. Ms. Garland was subsequently removed from
her position effective April 16, 2016. In the Removal Deci-
sion, OPM relied on medical letters from Dr. Greenberg
Case: 24-2291 Document: 39 Page: 2 Filed: 04/22/2026

-- 2 of 14 --

GARLAND v. OPM 3
dated from October through December 2014, documenting
Ms. Garland’s symptoms. See J.A. 115–16. OPM deter-
mined Dr. Greenberg’s documentation “support[ed] the
statements in the notice of proposed removal and the con-
clusions reached by [OPM’s] contract physician,” namely,
that Ms. Garland was medically unable to perform her po-
sition. J.A. 115, 119.
After her removal, Ms. Garland applied for disability
retirement. OPM considered her application and con-
cluded that she “d[id] not meet the criteria for entitlement
and [was] not disabled within the meaning of the retire-
ment law.” J.A. 85. OPM reviewed Dr. Greenberg’s docu-
mentation—the same medical letters relied on by OPM in
the Removal Decision—and acknowledged that Dr. Green-
berg “stressed that . . . [Ms. Garland] had difficulty concen-
trating and focusing” and “reiterated . . . that
[Ms. Garland] suffered from situational panics, insomnia,
and debilitating stomach aches all due to the stress of the
work and the work environment.” J.A. 87. However, OPM
could not “determine the incapacitating extent of [Ms. Gar-
land’s] medical conditions/symptoms” due to the “lack of
sufficient objective evidence in file to show the magnitude
of [her] medical conditions/symptoms.” Id. OPM asserted
that, without such objective evidence, it “could not get a
clear picture of the nature of [her] symptoms/conditions,
the degree of [her] impairment, or [her] clinical course.” Id.
On reconsideration, OPM elaborated that Dr. Green-
berg’s records “failed to provide adequate medical evidence
to support a disabling medical condition,” and his “reports
lack[ed] any specific details regarding a description of
[Ms. Garland’s] symptoms, results of mental status exami-
nations, results of any neuropsychological testing that may
have been performed over the years, and records pertain-
ing to [Ms. Garland’s] treatment.” J.A. 80. Therefore,
OPM “sustained the original decision to disallow [Ms. Gar-
land’s] application.” J.A. 81.
Case: 24-2291 Document: 39 Page: 3 Filed: 04/22/2026

-- 3 of 14 --

GARLAND v. OPM 4
Ms. Garland appealed OPM’s reconsideration decision
to the Board. Before the Board, OPM argued that Ms. Gar-
land did not qualify for disability retirement because she
“did not provide the requested additional medical docu-
mentation to support her disability retirement applica-
tion,” and thus “no medical condition was ever established
that was shown to be incompatible with useful and efficient
service in her position.” J.A. 193. OPM further argued
that Dr. Greenberg “did not provide adequate medical evi-
dence to support a disabling medical condition” because he
“offered no evidence of testing, psychotherapy notes, list of
medications, or documentation of treatment [Ms. Garland]
may have undergone for her depression and anxiety during
the relevant years in question.” Id.
The administrative judge affirmed OPM’s decision.
J.A. 10. The administrative judge recognized that under
our precedent in Bruner, because Ms. Garland was
“[r]emov[ed] from federal service for medical inability to
perform the duties of [her] position,” she was entitled to a
“presumption of disability that serves to shift to the gov-
ernment the burden of production.” J.A. 15 (quoting
Bruner, 996 F.2d at 294). The administrative judge then
noted OPM “indicated that [Ms. Garland] had failed to file
medical records sufficient to support her claims.” J.A. 16
(citing J.A. 90). The administrative judge also cited OPM’s
medical reviewer’s statements that Ms. Garland “failed to
file any supporting medical documentation”:
No medical record at all was found in this case file.
Not even one page, so no records were found show-
ing the applicant’s diagnosis and progress in treat-
ment. The severity of any impairment was
unsupported by mental function measurements.
No prognosis for any occupational impairment was
supported due to the absence of any medical rec-
ords. No medical condition of any kind was sup-
ported by the information in this case file because
no medical records were there. My assignment was
Case: 24-2291 Document: 39 Page: 4 Filed: 04/22/2026

-- 4 of 14 --

GARLAND v. OPM 5
to describe the occupational health status of the ap-
plicant as documented on the medical records on
file. Since there was none, I cannot complete that
assignment. I have no medical factual basis to rec-
ommend acceptance of this claim, as there were no
medical facts to base it on.
J.A. 16 (quoting J.A. 94). Relying on OPM’s medical re-
viewer’s statements, as well as OPM’s conclusion that
“there were no current supporting objective records pro-
vided to show” that Ms. Garland’s medical conditions
caused disablement, the administrative judge found that
OPM met “its burden of production to rebut the Bruner pre-
sumption so that the Board must weigh the totality of the
evidence produced by both sides to determine if [Ms. Gar-
land] is entitled to disability retirement benefits.” Id. (cit-
ing Trevan v. Off. of Pers. Mgmt., 69 F.3d 520, 527
(Fed. Cir. 1995)). With the Bruner presumption overcome,
the administrative judge considered the totality of the evi-
dence and found Ms. Garland had “not presented prepon-
derant evidence to show that she suffers an inability to
render useful and efficient service,” affirming OPM.
J.A. 24. The Board affirmed the initial decision, making it
the Board’s final decision. Garland v. Off. of Pers. Mgmt.,
No. DC-831E-17-0792-I-1, 2024 WL 3311319, at *1
(M.S.P.B. July 3, 2024).
Ms. Garland petitions for review.
D ISCUSSION
As a threshold issue, we first address our court’s juris-
diction to hear Ms. Garland’s petition. Once satisfying our-
selves of jurisdiction, we provide an overview of three
decisions that guide our analysis of the sole issue in this
appeal: Bruner, Trevan, and Vanieken-Ryals. Finally, we
discuss the merits of Ms. Garland’s petition.
Case: 24-2291 Document: 39 Page: 5 Filed: 04/22/2026

-- 5 of 14 --

GARLAND v. OPM 6
I
As a threshold issue, we first address our jurisdiction.
Our jurisdiction to review OPM disability determinations
is restricted by 5 U.S.C. § 8347 and the Supreme Court’s
interpretation of that statute in Lindahl v. Office of Person-
nel Management, 470 U.S. 768 (1985). “Under that statute
as interpreted in Lindahl, factual determinations on ‘ques-
tions of disability and dependency’ are unreviewable by
this or any other court.” Vanieken-Ryals v. Off. of Pers.
Mgmt., 508 F.3d 1034, 1038 (Fed. Cir. 2007). Issues of law,
however, are reviewable. Id. “[Judicial] review is available
to determine whether there has been a substantial depar-
ture from important procedural rights, a misconstruction
of the governing legislation, or some like error going to the
heart of the administrative determination.” Id. (alteration
in original) (quoting Lindahl, 470 U.S. at 791). Thus, we
may address Ms. Garland’s argument that the Board made
a critical legal error in reviewing OPM’s decision. See id.;
see Pet. Br. 10 (“Ms. Garland contends that OPM has im-
posed and relied upon, and the [Board] affirmed, an imper-
missible objective medical evidence requirement in
rebutting the presumption of disability under Bruner.”).
Ms. Garland argues before us that the administrative
judge erred by holding that the Bruner presumption is
overcome by OPM’s argument that Ms. Garland failed to
introduce objective medical evidence. We review this legal
issue de novo, “keeping in mind that the [Board’s] decision
sustaining OPM’s actions may only be reversed if it is arbi-
trary or capricious, or if it is contrary to law.” Vanieken-
Ryals, 508 F.3d at 1040 (citing 5 U.S.C. § 7703(c)).
II
Our decisions in Bruner, Trevan, and Vanieken-Ryals
govern and inform our analysis in this case. We discuss
each in turn.
Case: 24-2291 Document: 39 Page: 6 Filed: 04/22/2026

-- 6 of 14 --

GARLAND v. OPM 7
In Bruner, we held that when a government agency
separates a claimant from service due to disability, it cre-
ates an “evidentiary presumption which serves to shift the
burden of coming forward to the government.” 996 F.2d
at 293–94. “That is, the applicant is deemed to have met
his burden of proof prima facie. The burden of production
then shifts to the government, to come forward with evi-
dence sufficient to support a finding that the applicant is
not disabled . . . .” Id. at 294. However, the burden of proof
still remains with the claimant, even though the agency’s
determination of disability shifts the burden of production.
See id. (“We do not hold that the ultimate burden of proof
is shifted when the agency has separated the employee
based on the agency’s determination of disability, for we do
not think that the presumption of disability based on
agency action warrants this force.”). We summarized the
burden shifting framework as follows:
[T]he government’s action in separating an em-
ployee for disablement produces a presumption of
disability that serves to shift to the government the
burden of production. The government must come
forward with enough evidence that a reasonable
fact finder could conclude that the applicant did not
qualify [for disability retirement under 5 C.F.R.
§ 831.1203].[1] Thus the initial presumption in fa-
vor of the claimant will control the result only in
cases where the government does not introduce ev-
idence sufficient to support a finding in its favor; in
such cases, an applicant who has been dismissed
for physical disqualification and absence of an al-
ternative position will generally prevail. However,
1 Bruner cites to 5 C.F.R. § 831.502(b) (1993), which
has been replaced by 5 C.F.R. § 831.1203. While “[t]hese
two regulations are not exactly the same, . . . the relevant
portions are substantively similar.” Resp. Br. 15 n.2.
Case: 24-2291 Document: 39 Page: 7 Filed: 04/22/2026

-- 7 of 14 --

GARLAND v. OPM 8
if the government’s evidence is sufficient to support
a finding that the applicant is not entitled to disa-
bility retirement . . . , the totality of the evidence
produced by both sides is weighed by the trier of
fact, who may (but need not) infer disability from
the facts giving rise to the presumption. The appli-
cant, who retains the burden of persuasion, will
then prevail only if he/she establishes entitlement
by a preponderance of the evidence.
Id. (citations omitted).
In Trevan, we elaborated on one way that OPM might
meet its burden of production to overcome the Bruner pre-
sumption: “by demonstrating a lack of objective medical
evidence ‘provid[ing] a reasoned explanation of how certain
aspects of a particular condition render the employee una-
ble to perform specific work requirements.’” 69 F.3d at 526
(alteration in original) (citation omitted). There, the em-
ploying agency removed the claimant for “inability to per-
form his duties,” thus entitling the petitioner to the Bruner
presumption and shifting the burden of production to OPM.
Id. at 523. Importantly, the administrative judge deter-
mined OPM met its burden of production by providing ob-
jective medical evidence, in the form of X-rays and
treadmill stress test results, that was “inconsistent with”
the petitioner’s claim of disability. See id. The Board af-
firmed the administrative judge’s decision, and we af-
firmed the Board. Id. at 523, 526–27.
In our decision, we emphasized the Board’s reliance on
medical “evidence . . . that was inconsistent with [the
claimant’s] claim of disability, and the lack of clinical find-
ings and other objective medical evidence supporting the
claimed disabilities.” Id. at 526. We further noted that
while “objective medical evidence is not the only factor to
be assessed in determining disability, . . . it is clearly cor-
rect to consider such evidence, and the lack thereof, as pro-
bative in [disability] determinations,” “[p]articularly
Case: 24-2291 Document: 39 Page: 8 Filed: 04/22/2026

-- 8 of 14 --

GARLAND v. OPM 9
when . . . OPM has produced medical evidence that is in-
consistent with subjective claims of disability.” Id. at 527
(emphasis added) (citation omitted). When presented with
objective medical evidence inconsistent with or contradict-
ing a subjective claim of disability, “a reasonable fact finder
could rely on a lack of objective medical evidence to the con-
trary in concluding that an employee is not prevented by a
medical condition from working,” particularly because “in
many cases it may be difficult to tell when ‘neutral’ evi-
dence so lacks positive indication of disability that it sug-
gests the contrary, i.e., that no disability exists.” Id.
In Vanieken-Ryals, a case where the Bruner presump-
tion was not at issue, we addressed whether OPM and the
Board can require a claimant to provide “objective” medical
evidence to meet the claimant’s ultimate burden of persua-
sion for disability retirement. 508 F.3d at 1040–44. There,
the claimant had been diagnosed with “generalized anxiety
disorder, panic attack disorder without agoraphobia, and
major depression.” Id. at 1037. The claimant submitted
evidence to OPM “consist[ing] of her own statements in ad-
dition to several letters, medical reports, and related docu-
mentation from her treating psychologist, Dr. Nichols, and
treating psychiatrist, Dr. Rummler.” Id. at 1036. Before
the Board, the claimant “additionally submitted testimony
from herself and her husband, as well as testimony from
Dr. Nichols. OPM offered no medical evidence countering
Dr. Nichols’ and Dr. Rummler’s documents or testimony.”
Id. The Board affirmed OPM’s determination that the
claimant failed to prove her disability, and the Board and
OPM “gave no weight at all to [the claimant’s] medical ev-
idence.” Id. at 1038. The Board’s “holding was largely
based on [its] rejection of [the claimant’s] medical evidence
and its view that she had failed to prove any disability be-
yond an inability to work with her particular supervisor.”
Id.
We vacated and remanded the Board’s decision be-
cause it “applied an erroneous legal standard” that was
Case: 24-2291 Document: 39 Page: 9 Filed: 04/22/2026

-- 9 of 14 --

GARLAND v. OPM 10
“predicated on its view that ‘objective’ medical evidence is
required to prove disability.” Id. at 1036, 1039. In so hold-
ing, we highlighted the administrative judge’s conclusion
“that Dr. Nichols’ reports were necessarily immaterial
since they were ‘subjective’ in that they were primarily
based on Dr. Nichols’ assessment of [the claimant’s] own
account of her symptoms and experiences.” Id. at 1039.
And upon review of the record, we determined the Board’s
order gave “absolutely no weight . . . to certain evidence
solely because it c[ould] generally be classified as ‘subjec-
tive’ and not because of any specific identifiable defect,”
which amounted to “[d]isqualification” of that evidence. Id.
at 1040. Such disqualification, we held, is unlawful, since
the OPM regulation defining the type of medical documen-
tation required to establish disability did not “hint of any
objective/subjective distinction.” Id. at 1041. So a claimant
“may prevail based on medical evidence that . . . consists of
a medical professional’s conclusive diagnosis, even if based
primarily on his/her analysis of the applicant’s own de-
scriptions of symptoms and other indicia of disability.” Id.
And we highlighted the particular problem with requiring
“‘objective’ tests” in instances where “the alleged disability
arises from purely psychological, as opposed to physical,
disorders,” because psychological disorders differ from
physical ones in the ways they are diagnosed and docu-
mented. Id. at 1042. Accordingly, we held it is “legal error”
for OPM or the Board “to reject submitted medical evidence
as entitled to no probative weight at all solely because it
lacks so-called ‘objective’ measures such as laboratory
tests.” Id.
Further, we distinguished Vanieken-Ryals from the cir-
cumstances in Trevan. We concluded that Trevan was in-
apposite from Vanieken-Ryals because in Trevan, “the
[Board] and OPM did not err by relying on a lack of objec-
tive medical evidence supporting a claim of disability when
‘OPM has produced [objective] medical evidence [such as X-
rays] that is inconsistent with subjective claims of
Case: 24-2291 Document: 39 Page: 10 Filed: 04/22/2026

-- 10 of 14 --

GARLAND v. OPM 11
disability.’” Vanieken-Ryals, 508 F.3d at 1042 n.7 (quoting
Trevan, 69 F.3d at 526–27) (second and third alterations in
original). And the Board’s comparison in Trevan, deeming
“subjective evidence . . . to be less probative than contrary
objective evidence,” differed from the Board’s analysis in
Vanieken-Ryals, where “the only medical evidence [was]
the so-called ‘subjective’ evidence submitted by” the claim-
ant. Id. (first emphasis added).
III
Turning to the case before us, we hold that OPM may
not satisfy its burden of production under Bruner by simply
asserting a lack of objective medical evidence. To reach
this holding, we apply our reasoning from Vanieken-Ryals
to cases where the Bruner presumption applies. While a
claimant for disability benefits “is not absolved of coming
forward with evidence and argument in rebuttal of any ev-
idence of absence of entitlement adduced by [OPM], [OPM]
must first meet its burden of producing sufficient evidence
to support a finding that” the claimant does not qualify for
disability benefits. Bruner, 996 F.2d at 294. Vanieken-Ry-
als makes clear that in disability retirement applications,
“any evidence—‘subjective’ or otherwise—utilizing ‘estab-
lished diagnostic criteria’ and consistent with ‘generally ac-
cepted professional standards’ is eligible for consideration.”
508 F.3d at 1041. And a legal error occurs when OPM and
the Board give a claimant’s evidence “no probative
weight . . . solely because it lack[ed] so-called ‘objective’
measures such as laboratory tests.” Id. at 1042.
Considering the holdings and reasoning from both
Bruner and Vanieken-Ryals, OPM cannot “meet its burden
of producing sufficient evidence to support a finding that
the requirements” for disability retirement are not met by
the claimant, and thus overcome the Bruner presumption,
by simply asserting the evidence provided by the claimant
in a disability retirement application is deficient “because
it lacks so-called ‘objective’ measures.” Bruner, 996 F.2d
Case: 24-2291 Document: 39 Page: 11 Filed: 04/22/2026

-- 11 of 14 --

GARLAND v. OPM 12
at 294; Vanieken-Ryals, 508 F.3d at 1042. Here, the
Board’s sole basis for its conclusion that OPM met its bur-
den of production was OPM’s assertion that Ms. Garland’s
medical documentation was insufficient to support her
claims due to the lack of “current supporting objective rec-
ords provided to show” her conditions caused disablement.
J.A. 16; see also id. (citing OPM’s medical reviewer stating
“[t]he severity of any impairment was unsupported by
mental function measurements” (citations omitted)). The
Board therefore erred in its analysis.
To be clear, OPM may rely on a “lack of objective med-
ical evidence” when it is a part of OPM’s effort to meet its
burden of production under Bruner, but the “lack of objec-
tive medical evidence” may not be its sole assertion. This
is demonstrated by our decision in Trevan. There, we rec-
ognized that in cases where “OPM has produced medical
evidence that is inconsistent with subjective claims of dis-
ability, a reasonable fact finder could rely on a lack of ob-
jective medical evidence to the contrary in concluding that
an employee is not prevented by a medical condition from
working,” thus satisfying OPM’s burden of production un-
der Bruner. Trevan, 69 F.3d at 527 (emphasis added).
While OPM argues its reliance on a lack of “objective” evi-
dence is permissible under Trevan, Resp. Br. 20, we do not
hold that OPM and the Board erred by relying on the lack
of “objective” evidence at all in rebutting the Bruner pre-
sumption. Rather, we hold that OPM and the Board erred
by solely relying on the lack of “objective” evidence. See
Vanieken-Ryals, 508 F.3d at 1042 n.7 (“[I]n Trevan[,] . . .
we held that the [Board] and OPM did not err by relying on
a lack of objective medical evidence supporting a claim of
disability when ‘OPM has produced [objective] medical ev-
idence [such as X-rays] that is inconsistent with subjective
claims of disability.’” (fourth and fifth alterations in origi-
nal)).
OPM also argues before us that it “rebutted the
[Bruner] presumption based on a showing that
Case: 24-2291 Document: 39 Page: 12 Filed: 04/22/2026

-- 12 of 14 --

GARLAND v. OPM 13
Ms. Garland failed to produce any medical evidence of dis-
ablement (not just evidence categorized as ‘objective’).”
Resp. Br. 17. We disagree with OPM’s characterization of
the record. OPM’s initial decision credited Dr. Greenberg’s
reports that Ms. Garland “had difficulty concentrating”
and “suffered from situational panics, insomnia, and debil-
itating stomach aches all due to the stress of the work and
the work environment,” but OPM stated that without “suf-
ficient objective evidence . . . to show the magnitude of
[Ms. Garland’s] medical conditions/symptoms,” it could not
“determine the incapacitating extent” of her conditions.
J.A. 87 (emphasis added). And before the Board, OPM con-
tended Dr. Greenberg’s medical evidence was inadequate
because Dr. Greenberg “offered no evidence of testing, psy-
chotherapy notes, list of medications, or documentation of
treatment [Ms. Garland] may have undergone.” J.A. 193
(citations omitted). The Board ultimately based its deci-
sion on the lack of “current supporting objective records,”
such as the absence of “mental function measurements.”
J.A. 16 (citations omitted). Based on our precedent as dis-
cussed above, this was error.
Finally, OPM argues that even if the Board’s reliance
on the lack of “objective” evidence was error, such error was
harmless because the administrative judge weighed the to-
tality of the evidence. Resp. Br. 23. But this line of argu-
ment would eviscerate the Bruner presumption. Under
Bruner, the Board only weighs the totality of the evidence
once OPM meets its burden to “introduce evidence suffi-
cient to support a finding in its favor.” 996 F.2d at 294.
Otherwise, “the initial presumption in favor of the claim-
ant will control the result” of the case. Id. The Board’s
impermissible reliance on the lack of “objective” evidence
as the reason to determine OPM met its burden of produc-
tion was not harmless because it resulted in overcoming a
presumption in Ms. Garland’s favor that otherwise con-
trolled the outcome of her case. See id.
Case: 24-2291 Document: 39 Page: 13 Filed: 04/22/2026

-- 13 of 14 --

GARLAND v. OPM 14
Accordingly, because both OPM’s argument before the
Board and the Board’s final decision were based on the lack
of “objective” medical evidence provided by Ms. Garland,
OPM did not rebut Ms. Garland’s presumption of disabil-
ity. And due to Ms. Garland’s unrebutted presumption of
disability, we determine Ms. Garland is entitled to disabil-
ity retirement benefits.
CONCLUSION
We have considered OPM’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we re-
verse the Board’s final order.
REVERSED
Case: 24-2291 Document: 39 Page: 14 Filed: 04/22/2026

-- 14 of 14 --