                        NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                            06-3262

                                   LARRY THOMPSON,

                                                       Petitioner,

                                              v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.

                             ___________________________

                             DECIDED: December 11, 2006
                             ___________________________

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST, Circuit
Judge.

RADER, Circuit Judge.

       The Office of Personnel Management (OPM) denied petitioner Larry Thompson’s

disability retirement benefits under the Federal Employees Retirement System (FERS).

The Merit Systems Protection Board (Board) affirmed. Larry Thompson v. Office of

Pers. Mgmt., SF-844E-05-0638-I-1 (M.S.P.B. Apr. 3, 2006) (Final Order) affirming Larry

Thompson v. Office of Pers. Mgmt., SF-844E-05-0638-I-1 (M.S.P.B. Oct. 18, 2005)

(Initial Decision). Because this court does not review factual determinations in disability

retirement cases, Lindahl v. Office of Personnel Management, 470 U.S. 768 (1985), this

court dismisses for lack of jurisdiction.
                                            I.

       The Veterans Administration (VA) employed Mr. Thompson for approximately

fifteen years as a social services assistant. Earlier he held positions as a housekeeping

aid, housekeeping aid leader, and health technician with the VA. Two days after Mr.

Thompson voluntarily absented himself from his employment, he applied for disability

benefits, claiming he suffered from post traumatic stress disorder (PTSD) related to his

military service in Viet Nam.

       OPM denied his request for disability because he did not meet the applicable

criteria. In particular, Mr. Thompson did not have any notable performance deficiencies

at the time of his voluntary departure from the VA. Further, OPM did not find any

definitive medical evidence indicating that Mr. Thompson was unable to perform his

work duties as a result of his mental illness. Mr. Thompson requested reconsideration.

OPM affirmed its earlier decision on April 25, 2005.

       Mr. Thompson appealed OPM's decisions to the Board. The administrative judge

found no evidence in the record from any treating physician specifically describing any

duties that Mr. Thompson was incapable of performing. Initial Decision, slip. op. 5.

Rather, at the time of his retirement, his job performance was satisfactory and his

supervisor had voiced no complaints. Id. While the administrative judge noted Mr.

Thompson’s PTSD diagnosis, the record did not show that Mr. Thompson's mental

condition rendered him incapable of performing his job duties. Id. at 6. Thus, the

administrative judge found that the medical evidence did not support a finding of

disability. Id. The Board affirmed. Final Order, slip. op. 2.




06-3262                                     2
                                            II.

       Section 8461 of Title 5 governs disability retirement appeals such as Mr.

Thompson's.    5 U.S.C. § 8461(d).      This court has held that it 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.

Mgm., 58 F.3d 620, 626 (Fed. Cir. 1995) (quoting Lindahl, 470 U.S. at 791.) This

standard applies to reviews of disability determinations under the Civil Service

Retirement System (CSRS) as well as the FERS. Id. In Anthony, this court noted that

the Supreme Court in Lindahl preserved "judicial review of factual findings regarding the

mental condition of involuntarily retired employees." 58 F.2d at 625. However as noted

above, Mr. Thompson's departure was voluntary. Thus, this court's review is limited.

Id. at 626.

       On appeal, Mr. Thompson argues that the Board did not consider a letter from a

specific physician because it was mailed to the wrong place. He further suggested that

this evidence would have affected the outcome of the Board’s determination.

However, this court cannot consider new evidence that was not before the Board. Cruz

v. Dep’t of Navy, 934 F.2d 1240, 1245 n.6 (Fed. Cir. 1991). The remainder of Mr.

Thompson's arguments appear to challenge the correctness of the Board's factual

determinations of nondisability. This court cannot discern that the Board made any

legal or procedural errors. This court lacks jurisdiction to review the Board's factual

determinations. Baker v. Office of Pers. Mgmt., 782 F.2d 993, 994 (Fed. Cir. 1986)




06-3262                                      3
("[Petitioner] wants us to review the record to determine whether there was substantial

evidence supporting the MSPB nondisability determination. That, of course, we have

no jurisdiction to do.").   As such, this court must dismiss the petition for lack of

jurisdiction.




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