Frank E. Marino v. Off. of Pers. Mgmt., 243 F.3d 1375 (Fed. Cir. 2001). · Go Syfert
Frank E. Marino v. Off. of Pers. Mgmt., 243 F.3d 1375 (Fed. Cir. 2001). Cases Citing This Book View Copy Cite
41 citation events (41 in the last 25 years) across 2 distinct courts.
Strongest positive: Stephanie Reddin v. Office of Personnel Management (mspb, 2026-06-09)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Stephanie Reddin v. Office of Personnel Management
MSPB · 2026 · confidence medium
The administrative judge found that “[a]lthough the appellant did not decline an offered reassignment, she did not allow the agency the opportunity to reach that 2 In Marino v. Office of Personnel Management, the Federal Circuit extended the Bracy holding to cases of employees seeking disability retirement under FERS. 243 F.3d 1375, 1377-78 (Fed.
cited Cited as authority (rule) Kenasha Symonette v. Department of Justice
MSPB · 2026 · confidence medium
Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed.
discussed Cited as authority (rule) Thurston v. Opm
Fed. Cir. · 2024 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Broaden v. Department of Transportation
Fed. Cir. · 2024 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Broaden v. Department of Transportation
Fed. Cir. · 2024 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
discussed Cited as authority (rule) Derrick Brown v. United States Postal Service
MSPB · 2024 · signal: cf. · confidence medium
Cf. Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Michael Bolden v. Office of Personnel Management
MSPB · 2023 · confidence medium
Any such error does not affect the disposition of this matter. 9 The court extended the rationale of Bracey to FERS cases in Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Shu v. USPS
Fed. Cir. · 2023 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Shu v. USPS
Fed. Cir. · 2023 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Bryan Prather v. Office of Personnel Management
MSPB · 2023 · confidence medium
In Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Gray v. Merit Systems Protection Board
Fed. Cir. · 2016 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.
cited Cited as authority (rule) Hicks v. Merit Systems Protection Board
Fed. Cir. · 2016 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001).
cited Cited as authority (rule) Jolley v. Department of Justice
Fed. Cir. · 2015 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001).
cited Cited as authority (rule) Reilly v. Office of Personnel Management
Fed. Cir. · 2009 · confidence medium
Mgmt., 243 F.3d 1375, 1377-78 (Fed.Cir.2001) (reviewing whether “light duty” work was, as a legal matter, a reasonable accommodation); Bracey v. Office of Pers.
cited Cited as authority (rule) Brown v. Office of Personnel Management
Fed. Cir. · 2008 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001) (quoting Anthony v. Office of Pers.
examined Cited as authority (rule) Gooden v. Office of Personnel Management (3×) also: Cited "see"
Fed. Cir. · 2006 · confidence medium
Mgmt., 243 F.3d 1375, 1377-78 (Fed.Cir.2001) (applying Bracey to FERS regulations).
cited Cited as authority (rule) Johnson v. Office of Personnel Management
Fed. Cir. · 2004 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001) (quoting Anthony v. Office of Pers.
cited Cited as authority (rule) Younger v. Department of Veterans Affairs
Fed. Cir. · 2004 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001).
cited Cited as authority (rule) Katherine McLaughlin v. Office of Personnel Management
Fed. Cir. · 2004 · confidence medium
Mgmt., 243 F.3d 1375, 1377 (Fed.Cir.2001).
discussed Cited "see" Mocny v. Office of Personnel Management
Fed. Cir. · 2016 · signal: see · confidence high
We can set such a decision aside only if 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); see Marino v. OPM, 243 F.3d 1375, 1377 (Fed.
discussed Cited "see" Brenda L. Thomas v. Office of Personnel Management
MSPB · 2016 · signal: see · confidence high
IAF, Tab 6 at 114-15; see Marino v. Office of Personnel Management, 243 F.3d 1375, 1377 (Fed.
cited Cited "see, e.g." John Hammond v. Office of Personnel Management
MSPB · 2024 · signal: see, e.g. · confidence medium
ID at 20-21; see, e.g., Marino v. Office of Personnel Management, 243 F.3d 1375, 1377-78 (Fed.
Retrieving the full opinion text from the archive…
Frank E. MARINO, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent
00-3133.
Court of Appeals for the Federal Circuit.
Mar 27, 2001.
243 F.3d 1375
Frank E. Marino, of San Antonio, Texas, pro se., Doris S. Finnerman, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, for respondent. With her on the brief were David W. Cohen, Director; and Todd M. Hughes, Assistant Director.
Mayer, Lourie, Schall.
Cited by 32 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 83%
Citer courts: Federal Claims (2)
MAYER, Chief Judge.

Frank E. Marino appeals the final decision of the Merit Systems Protection Board in Docket No. DA844E980317-I-1 (Nov. 1, 1999), denying his application for disability retirement under the Federal Employees’ Retirement System (FERS). Because the board’s decision is contrary to the language of the governing statute and regulations, we reverse and remand.

Background

Marino was employed as a Materials Handler for the Defense Logistics Agency (DLA) at the Defense Distribution Depot in San Antonio, Texas. On August 15, 1996, he was moved from the warehouse, placed in an administrative office and given a set of light duties as an accommodation for his alleged disability (chronic sinusitis and persistent respiratory infections). Marino remained in the administrative office until he was affected by a Reduction in Force (RIF) on March 14, 1998. Marino’s official position was terminated as a result of the RIF. On January 30, 1997, he applied for disability retirement under FERS. The Office of Personnel Management (OPM) initially denied the request and, on March 11, 1998, issued a final decision affirming its initial decision. Marino appealed to the board.

The administrative judge affirmed OPM’s denial of Marino’s request. See Marino v. Office of Pers. Mgmt., No. DA844E980317-I-1 (Dec. 7, 1998) (initial decision). The administrative judge concluded that Marino failed to prove by a preponderance of the evidence that his medical problems rendered him unable to perform useful and efficient service in his position. The administrative judge first found that the objective medical evidence does not support a finding that the medical problems are so severe as to be disabling. Second, he found that DLA provided, and Marino accepted, an accommodating position in the administrative office. While in the accommodating position, Marino provided useful and efficient service. Finally, the administrative judge determined that accommodation would have continued but for the termination of Marino’s position by the RIF. The initial decision became the final decision of the board on November 1, 1999.

Discussion

The scope of our review in an appeal from a decision of the board is limit[*1377] ed. Specifically, we must affirm the decision unless we find it to be “(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) (1994). Our scope of review of disability retirement determinations under FERS is even more limited. “[T]his court is 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 important procedural rights, a misconstruction of the governing legislation, or some like error going to the heart of the administrative determination.’ ” Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed.Cir.1995) (quoting Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 791, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985)).

Marino claims that he is eligible for disability retirement because, contrary to the board’s finding, DLA failed to accommodate his disability. The implementing regulations for disability retirement under FERS state that one of the requirements for disability retirement is that “[a]ccommodation of the disabling medical condition in the position held must be unreasonable.” 5 C.F.R. § 844.103. Accommodation is defined as “a reasonable adjustment made to an employee’s job or work environment that enables the employee to perform the duties of the position. Accommodation may include modifying the worksite; adjusting the work schedule; restructuring the job; obtaining or modifying equipment or devices; providing interpreters, readers, or personal assistants; and retraining the employee.” Id. § 844.102. Marino argues that because DLA merely assigned him an unofficial set of office duties under a personnel loan arrangement, adjustments were not made to his job or work environment that enabled him to perform the duties of his official position of Materials Handler. Therefore, there was no accommodation.

We have recently considered this same question for employees serving under the Civil Service Retirement System (CSRS). See Bracey v. Office of Pers. Mgmt., 236 F.3d 1356 (Fed.Cir.2001). The only difference between disability retirement under CSRS and disability retirement under FERS is that the preambles to the two regulations state the different eligibility requirements for the two retirement systems. Compare 5 C.F.R. § 831.1203 with 5 C.F.R. § 844.103. Otherwise, the conditions in the two regulations are identical. Because of the similarities between the two retirement systems, commentary on one helps to construe the other. See Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1470 (Fed.Cir.1998).

In Bracey, we held that the adjustment made to the employee’s job or work environment must enable the employee to continue to perform the duties of his or her official position. . 236 F.3d at 1361. A “light-duty assignment therefore cannot be considered an ‘accommodation’ as that term is used in the regulations.” Id. Here, Marino was never assigned to another position within the agency. Until his separation, he maintained his official position of Materials Handler. His assignment to light duties, therefore, was not an accommodation which allowed him to perform the duties of his official position.

Marino also asserts that the board incorrectly weighed the evidence of his disability. We may not review the factual underpinnings of physical disability determinations. Anthony, 58 F.3d at 626. However, he argues that in determining his disability, the board improperly relied upon his ability to perform useful and efficient service in his unofficial light duty position, and not his official position of Materials Handler. This is an alleged error going to the heart of the administrative determination, which we may review. See id.

The board found that Marino suffers from allergies and respiratory problems, but concluded that the evidence did not[*1378] support a finding of disability. In so concluding, it relied on OPM’s finding that Marino was “providing useful and efficient service in the accommodation position.” Marino, at 7 (emphasis added). Marino acknowledged that he was able to perform any activity in a dust-free (accommodated) environment, but could not provide useful and efficient service as a Materials Handler. Section 8451 of title 5 of the United States Code requires a finding that the employee is unable “to render useful and efficient service in the employee’s position.” (Emphasis added). As we stated in Bracey, “[a] ‘position’ in the federal employment system is required to be classified and graded in accordance with the duties, responsibilities, and qualification requirements associated with it.” 236 F.3d at 1359. Therefore, any evaluation of useful and efficient service- for disability purposes must be with respect to the employee’s official position, not an unofficial light duty assignment.

Conclusion

Accordingly, the decision of the board is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.