Jody L. Bernard, Petitioner, v. Office of Personnel Management, Respondent, 873 F.2d 1450 (Fed. Cir. 1988)

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US Court of Appeals for the Federal Circuit - 873 F.2d 1450 (Fed. Cir. 1988) Dec. 6, 1988

Before MARKEY, Chief Judge, EDWARD S. SMITH and BISSELL, Circuit Judges.

MARKEY, Chief Judge.


Mr. Jody L. Bernard appeals from a decision of the Merit Systems Protection Board (board) docket number DA831L8710204, affirming a decision of the Office of Personnel Management (OPM) that disallowed his application for disability retirement.

A disability determination of the board is reviewable only if "there has been a substantial departure from important procedural rights, a misconstruction of governing legislation, or some like error 'going to the heart of the administrative determination.' " Lindahl v. OPM, 470 U.S. 768, 791 (1984) (citing Scroggins v. United States, 184 Ct. Cl. 530, 534, 397 F.2d 295, 297 (1968)). The factual underpinnings of disability determinations of the board are not subject to review. Id. at 791.

This court cannot consider Dr. Miller's March 5, 1985 letter because it was not submitted to either OPM or to the Dallas Regional Office of the board. Bernard's argument that the letter had been missing from his file was not presented to the board and cannot, therefore, be considered here.

This court lacks jurisdiction to consider Bernard's argument that the board's factual determinations are in error and none of the Lindahl criteria has been shown to have occurred. Hence we must dismiss the appeal.


The appeal is dismissed for lack of jurisdiction.