Van N. Le v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VAN N. LE,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1946
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-844E-19-0097-I-1.
______________________
Decided: July 14, 2026
______________________
ALLEN ARTHUR SHOIKHETBROD, Tully Rinckey, PLLC,
Latham, NY, for petitioner.
MOLLIE L ENORE G ROPP , 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. MC CARTHY , BRETT SHUMATE;
EMILY WARNER , Office of General Counsel, Office of Person-
nel Management, Washington, DC.
______________________
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LE v. OPM 2
Before REYNA, HUGHES , and CUNNINGHAM , Circuit Judges.
REYNA, Circuit Judge.
Van N. Le petitions for review from a final decision of
the Merit Systems Protection Board that affirmed the de-
nial of his application for Federal Employees Retirement
System disability retirement benefits. We dismiss for lack
of jurisdiction.
BACKGROUND
In 2007, Mr. Le began working at the Office of Customs
and Border Protection (“CBP”) within the United States
Department of Homeland Security (“DHS”). J.A. 116. Dur-
ing this time, Mr. Le temporarily left his position to serve
on active-duty military service from May 21, 2010, to June
16, 2011, when he deployed to Iraq. J.A. 52; J.A. 141;
J.A. 220. He returned to his employment at CBP on July
10, 2011. J.A. 220. In 2012, Mr. Le was diagnosed with
post traumatic stress disorder (“PTSD”). Id.
On October 5, 2015, CBP issued Mr. Le a notice of pro-
posed removal based on charges of (1) lack of candor,
(2) conduct unbecoming, (3) failure to follow leave policy,
and (4) misuse of official badge. J.A. 73; J.A. 86. On Feb-
ruary 3, 2016, CBP removed Mr. Le on those charges.
J.A. 86–87.1
Shortly after his removal, Mr. Le filed an application
for disability retirement under the Federal Employees Re-
tirement System (“FERS”) with the Office of Personnel
Management (“OPM”). J.A. 133–37. He noted that he was
1 Mr. Le appealed CBP’s removal decision to the
Merit Systems Protection Board (“Board”) in February
2016. J.A. 85. The Board affirmed the removal decision.
Le v. Dep’t of Homeland Sec., No. SF-0752-16-0306-I-1,
2016 WL 7439436 (M.S.P.B. Dec. 16, 2016). That decision
is now final and not at issue here.
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LE v. OPM 3
disabled due to high blood pressure, PTSD, and Hepati-
tis C. J.A. 133. He also noted that he became disabled
around March 2015. Id.
On June 25, 2017, OPM denied Mr. Le’s application for
disability retirement, determining that Mr. Le’s medical
evidence failed to establish a disabling medical condition
prior to his removal from CBP on February 3, 2016.
J.A. 126–30.
On September 7, 2018, the Department of Veterans Af-
fairs (“VA”) granted Mr. Le service-connected disability
benefits for PTSD, rating his disability at 100 percent.
J.A. 52. The effective date of Mr. Le’s benefits is March 20,
2017, the date the VA received Mr. Le’s claim for disability
benefits. Id.
On October 30, 2018, OPM affirmed its initial decision
denying Mr. Le’s application for disability retirement.
J.A. 71–75. Mr. Le appealed OPM’s decision to the Board,
giving rise to the petition for review before this court.
In an initial decision dated April 10, 2019 (“Initial De-
cision”), an administrative judge (“AJ”) at the Board af-
firmed OPM’s October 30, 2018, decision. J.A. 12–20. The
AJ found that Mr. Le failed to prove by preponderant evi-
dence that he had any disability that would render him un-
able to perform “useful and efficient service” in his position
at CBP, one of the legal requirements Mr. Le had to show
in order to qualify for disability retirement under FERS.
J.A. 16–20.
Mr. Le petitioned for review of the Initial Decision.
J.A. 2–3. The Board denied the petition for review, affirm-
ing the Initial Decision and adopting it as its own. J.A. 3.
Mr. Le petitions this court for review.
D ISCUSSION
Generally, we must affirm a final decision of the Board
unless it was “(1) arbitrary, capricious, an abuse of
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LE v. OPM 4
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). However, fac-
tual determinations made by the Board in an appeal of a
disability retirement decision made under FERS are final
and conclusive and not subject to review by this court. 5
U.S.C. § 8461(d); Anthony v. Off. of Pers. Mgmt., 58 F.3d
620, 626 (Fed. Cir. 1995) (“[T]his court is precluded by 5
U.S.C. § 8461(d) from reviewing the factual underpinnings
of physical disability determinations.”). Thus, in disability
retirement cases, our scope of review is limited to address-
ing “whether there has been a substantial departure from
important procedural rights, a misconstruction of the gov-
erning legislation, or some like error going to the heart of
the administrative determination.” Anthony, 58 F.3d at
626 (citation modified).
The government argues that Mr. Le’s petition for re-
view is a factual challenge to the Board’s disability deter-
mination and thus should be dismissed. Respondent
Br. 9–10. Mr. Le argues that his petition for review falls
within our limited jurisdiction. Reply Br. 2. He contends
that he is challenging an “error” going to the heart of the
administrative determination. Reply Br. 2–3 (citing An-
thony, 58 F.3d at 625). And that error, according to Mr. Le,
is the Board’s failure “to consider the substantial evidence
in the record supporting [his] application for disability re-
tirement.” Id. at 2. We disagree.
Arguing that the Board failed to consider substantial
evidence in the record that Mr. Le was allegedly entitled to
disability retirement is the same as arguing the Board’s de-
termination of no disability retirement is unsupported by
substantial evidence. We have repeatedly held that for dis-
ability retirement cases, we have no jurisdiction to review
whether the Board’s decision is supported by substantial
evidence. See, e.g., Baker v. Off. of Pers. Mgmt., 782 F.2d
993, 994 (Fed. Cir. 1986) (noting that this court has no
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LE v. OPM 5
jurisdiction to “review the record and determine whether
there was substantial evidence supporting the MSPB non-
disability determination”); Harty v. Off. of Pers. Mgmt., 835
F. App’x 1026, 1027–28 (Fed. Cir. 2021) (“Whether sub-
stantial evidence supports the Board’s disability determi-
nation is not a challenge within this court’s jurisdiction.”
(citing Baker, 782 F.2d at 994)).
In sum, Mr. Le fails to identify any critical error of law,
a substantial departure from important procedural rights,
or an error going to the heart of the administrative deter-
mination and instead challenges only the Board’s factual
findings. Petitioner Br. 7–19. Thus, we dismiss. Chafin
v. Off. of Pers. Mgmt., 177 F.4th 1183, 1187 (Fed. Cir. 2026)
(“Only the Board can review such matters.” (first citing
5 U.S.C. § 8461(d); then citing Anthony, 58 F.3d at 625)).
CONCLUSION
We have considered Mr. Le’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we dis-
miss.
DISMISSED
COSTS
No costs.
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