               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
               not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit


                                       05-3185



                                VANESSA R. HARDY,

                                                         Petitioner,

                                          v.

                        OFFICE OF PERSONNEL MANAGEMENT,

                                                         Respondent.


                           __________________________

                           DECIDED: December 9, 2005
                           __________________________


Before MAYER, RADER, and LINN, Circuit Judges.

PER CURIAM.

      Vanessa R. Hardy (“Hardy”) appeals the final decision of the Merit Systems

Protection Board, disallowing Hardy’s claim for disability retirement under the Federal

Employees’ Retirement System (“FERS”), reversing the initial decision of the board, and

affirming the June 16, 2003, reconsideration decision by the Office of Personnel

Management (“OPM”). Hardy v. Office of Pers. Mgmt., AT844E030739-I-1 (MSPB Mar.

17, 2005). We affirm.
       This court reviews final decisions of the board for “‘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,’” and cannot review the

factual underpinnings of the decision. Anthony v. Office of Pers. Mgmt., 58 F.3d 620,

624-26 (Fed. Cir. 1995)(citations omitted). In making its decision, the board properly

considered only that evidence pertaining to Hardy’s disability during the period of her

employment when determining whether she was eligible for disability retirement. The

disability she suffered in the year subsequent to her separation from federal service was

only relevant in establishing her right to a waiver of the statutory filing deadline, which

she was granted, and not entitlement to disability retirement itself. The board did not

substantially depart from important procedural rights in considering Hardy’s disability

retirement eligibility and in concluding that the evidence was insufficient to support an

award of disability retirement.




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