                      Note: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                     2007-3002



                                  JOHN L. COOK,

                                                            Petitioner,

                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                            Respondent.



      John L. Cook, Jr., of Wetumpka, Alabama, pro se.

       Jeffrey S. Pease, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson,
Director, and Harold D. Lester, Jr., Assistant Director.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2007-3002


                                    JOHN L. COOK,

                                                     Petitioner,


                                          v.


                     OFFICE OF PERSONNEL MANAGEMENT,

                                                     Respondent.


                          __________________________

                          DECIDED: April 9, 2007
                          __________________________


Before RADER, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

      John L. Cook, Jr., petitions for review of the final order of the Merit Systems

Protection Board (“Board”) sustaining the decision of the Office of Personnel

Management’s (“OPM”) denial of Mr. Cook’s request for disability retirement. We affirm.

                                    BACKGROUND

      Mr. Cook was employed as a Motor Vehicle Operator with the Department of the

Army. He was removed from service on April 2, 2004. On March 29, 2005, he applied

to OPM for disability retirement.   In his application, he listed a number of medical

conditions that, he claimed, caused him to be unable to perform the duties of his job.
OPM denied his application on July 18, 2005. Mr. Cook requested reconsideration and

OPM affirmed its initial denial of his application on October 20, 2005. OPM’s decision

letter informed him of his appeal rights.

       Mr. Cook filed an appeal with the Board. In the initial decision, the administrative

judge affirmed OPM’s denial of Mr. Cook’s application. Cook v. Office of Pers. Mgmt.,

No. AT844E060133-I-1 (M.S.P.B. Apr. 6, 2006). The administrative judge found that

“[t]he evidence [was] simply insufficient to establish that [Mr. Cook] suffers from a

medical condition which prevented him from performing the essential functions of his

former official position.” Id., slip op. at 7. Mr. Cook petitioned for full board review of the

administrative judge’s decision. The Board denied the petition for review, making the

administrative judge’s initial decision the final decision of the Board. Cook v. Office of

Pers. Mgmt., No. AT844E060133-I-1, slip op. at 2 (M.S.P.B. Aug. 2, 2006). Mr. Cook

petitions this court for review of the Board’s final decision.

                                       DISCUSSION

       This court has jurisdiction to review a final decision of the Board under 28 U.S.C.

§ 1295(a)(9).    When OPM denies a disability retirement application, and the Board

affirms, this court’s review is extremely limited.         We cannot review the factual

underpinnings of a disability determination. Lindahl v. Office of Pers. Mgmt., 470 U.S.

768, 791 (1985); Anthony v. Office of Pers. Mgmt., 58 F.3d 620, 626 (Fed. Cir. 1995).

Put another way, this court cannot review the evidence in this case to determine

whether the Board’s decision was correct. Our review is limited to determining “whether

there has been a substantial departure from important procedural rights, a




2007-3002                                     2
misconstruction of the governing legislation, or some like error ‘going to the heart of the

administrative determination.’” Lindahl, 470 U.S. at 791 (citation omitted).

       In this case, the Board found that there was not enough evidence to establish

that Mr. Cook’s medical conditions prevented him from doing his job as a Motor Vehicle

Operator. In his brief to this court, Mr. Cook argues that he has multiple, uncontrolled

health conditions and that he is requesting disability retirement benefits for his health

conditions.   We believe that Mr. Cook’s arguments relate to the Board’s factual

determination that there was not enough evidence that Mr. Cook’s medical conditions

prevented him from doing his job. But, under Lindahl, we cannot review the evidence in

this case to determine whether the Board’s decision was correct. See Smith v. Office of

Pers. Mgmt., 784 F.2d 397, 400 (“The sufficiency of the evidentiary support for the

Board’s decision ordinarily would not be viewed as a question of procedural rights or

construction of legislation, or analogous or comparable to those questions.”). For this

reason, we affirm the decision of the Board.

      No costs.




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