                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2007-3284

                               ROGER M. BONCELET,

                                                            Petitioner,

                                           v.

                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.


      Roger M. Boncelet, of Highland Park, New Jersey, pro se.

      Timothy P. McIlmail, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Kirk T. Manhardt, Assistant Director.

Appealed from: Merit Systems Protection Board
                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2007-3284

                                  ROGER M. BONCELET,

                                                      Petitioner,

                                            v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                      Respondent.

Petition for review of the Merit Systems Protection Board in PH844E070201-I-1.

                             __________________________

                             DECIDED: July 8, 2008
                             __________________________


Before MICHEL, Chief Judge, RADER and MOORE, Circuit Judges.

PER CURIAM.

       Roger M. Boncelet (Mr. Boncelet) petitions for review of the United States Merit

Systems Protection Board’s (Board) final order in Boncelet v. Office of Personnel

Management, PH844E070201-I-1 (June 12, 2007). The initial decision of the Board,

which became final on June 12, 2007, affirmed the Office of Personnel Management’s

(OPM’s) reconsideration decision, which reaffirmed OPM’s earlier determination to

disallow Mr. Boncelet’s disability retirement application under the Federal Employees’

Retirement System.       Mr. Boncelet petitions this court for review.   The petition is

dismissed for lack of jurisdiction.
                                    BACKGROUND

      The Transportation Security Administration (TSA), Department of Homeland

Security, terminated Mr. Boncelet’s employment as a Transportation Security Screener

at the Newark International Airport, effective January 28, 2005. TSA terminated Mr.

Boncelet because he “did not successfully complete the Annual Proficiency Review

(APR) and consequently [did] not meet the requirements for Annual Recertification as a

Transportation Security Screener.” Mr. Boncelet applied for disability retirement, and

OPM dismissed the application as untimely, but OPM later reconsidered its initial

decision and waived its timeliness requirement. OPM then disallowed Mr. Boncelet’s

application for disability retirement.    OPM found Mr. Boncelet did not provide

documentation showing any medical condition that could cause him to fail his

recertification tests, and found there was no evidence that he had any inability to

regularly attend work and perform his assigned duties prior to failing his recertification

test. Mr. Boncelet appealed to the Board, and at Mr. Boncelet’s request, the appeal

was decided on the record without a hearing. The administrative judge affirmed OPM’s

reconsideration decision in an initial decision dated May 8, 2007, and that decision

became final on June 12, 2007. This appeal followed.

                                     DISCUSSION

      The scope of our review in disability retirement cases “is limited to correcting

errors involving ‘important procedural rights, a misconstruction of the governing

legislation, or some like error going to the heart of the administrative determination.’”

Smith v. Office of Pers. Mgmt., 784 F.2d 397, 398 (Fed. Cir. 1986) (citation omitted).




2007-3284                                   2
We may not review the “factual underpinnings” of disability determinations. Id. (citation

omitted).

       Mr. Boncelet appears to agree that the Board applied the correct law. Pet. Br.,

Answer to Question No. 3. He does not ask us to correct any errors by the Board

involving “important procedural rights, a misconstruction of the governing legislation, or

some like error going to the heart of the administrative determination.” See Smith, 784

F.2d at 398. Rather, his arguments involve the factual underpinnings of the Board’s

decision. He argues that the Board failed to recognize certain aspects of his medical

condition, including the severity of his seizures, the advice of his doctors, and the nature

of his medication regimen. The government responds that the Board did take these

facts into account.     Because we do not have the power to review the factual

underpinnings of the Board’s decision, id. at 401, we dismiss the petition for lack of

jurisdiction.

                                         COSTS

       No costs.




2007-3284                                    3
