UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID A. COOK,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-844E-19-0183-I-1

DATE: May 7, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kevin A. Graham, Esquire, Liberty, Missouri, for the appellant.

Albert Pete Alston, Jr., Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed the reconsideration decision of the Office of Personnel Management

(OPM) that denied his application for disability retirement under the Federal

Employees’ Retirement System (FERS). Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to find that the appellant failed to show that his medical conditions

caused a deficiency in his attendance or conduct, we AFFIRM the initial decision.

On petition for review, the appellant contends that the administrative judge

failed to consider treatment notes, which, he asserts, show that his psychological

conditions contributed to his documented performance deficiencies. Petition for

Review (PFR) File, Tab 1 at 13; Initial Appeal File (IAF), Tab 6 at 86-92,

132-34. He further contends that the administrative judge failed to give

appropriate weight to the impact that his physical conditions, such as his neck and

back issues, had on his job performance, and he avers that these conditions

caused him to miss work frequently. PFR File, Tab 1 at 7, 13-15. 

After considering the appellant’s arguments on review and reviewing the

record, we agree with the administrative judge that the appellant failed to show

that his medical conditions caused a deficiency in his performance. IAF, Tab 19,

Initial Decision (ID) at 6-10; see Henderson v. Office of Personnel Management,

117 M.S.P.R. 313, ¶¶ 16, 19 (2012) (setting forth the framework to analyze a

disability retirement claim under the Civil Service Retirement System (CSRS));

see also Jackson v. Office of Personnel Management, 118 M.S.P.R. 6, ¶¶ 7-8

(2012) (finding that the framework to analyze a disability retirement claim is the

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same under CSRS and FERS); 5 C.F.R. § 844.103(a)(2). 2

 Although the

administrative judge did not explicitly discuss the treatment notes that the

appellant references, IAF, Tab 6 at 132-34, an administrative judge’s failure to

mention all of the evidence in the record does not mean that he did not consider it

in reaching his decision. Marques v. Department of Health and Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Moreover, neither the treatment notes nor the appellant’s testimony clearly

explained how the appellant’s psychological conditions caused his documented

performance deficiencies. IAF, Tab 6 at 86-92, 132-34; see Marucci v. Office of

Personnel Management, 89 M.S.P.R. 442, ¶ 8 (2001) (explaining that disability

determinations based on mental illness often depend on whether the record

contains a reasoned explanation of how the appellant’s psychological condition

disables the employee from performing specific job duties). 

In addition, we are not persuaded by the appellant’s assertion that the

administrative judge failed to appropriately consider the impact that his physical

conditions, such as his neck and back issues, had on his job performance. PFR

File, Tab 1 at 13-14. As set forth in the initial decision, the record is devoid of

any medical documentation indicating that the appellant was ever placed on any

work restriction, such as light duty. ID at 9. To this end, none of the treatment

notes in the record indicate that the appellant was physically unable to perform

his job functions. See Anderson v. Office of Personnel Management, 96 M.S.P.R.

299, ¶ 16 (2004) (explaining that a doctor’s conclusion that an employee is

disabled is persuasive only if the physician explains how the medical condition

affects the employee’s specific work requirements), aff’d, 120 F. App’x 320 (Fed.

2

 Although the appellant applied for disability retirement under FERS, the initial

decision cited a regulatory provision regarding the requirements for disability

retirement under CSRS. ID at 3 (citing 5 C.F.R. § 831.1203(a)(2)). However, because

the relevant regulatory provisions under either system are nearly identical, compare

5 C.F.R. § 831.1203(a)(2), with 5 C.F.R. § 844.103(a)(2), this misstatement is

immaterial to the outcome of this appeal, see Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to

a party’s substantive rights provides no basis for reversal of an initial decision). 

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Cir. 2005). Moreover, we agree with the administrative judge that the other

evidence in the record, to include the appellant’s testimony, also failed to make

such a showing. ID at 11. To the extent the appellant contends on review that his

pain impacted his job performance, the record suggests that his pain levels may

have been manageable with medication but that he rarely took such medication.

E.g., IAF, Tab 6 at 139, 171; see Confer v. Office of Personnel Management,

111 M.S.P.R. 419, ¶ 21 (2009) (explaining that, to prove entitlement to disability

retirement, an applicant must show that the medical condition at issue cannot be

controlled by medication or other reasonable means).

Last, the appellant asserts that his medical conditions caused him to miss

work frequently. PFR File, Tab 1 at 7. As set forth in the initial decision, an

appellant may establish entitlement to a disability retirement under FERS by

showing by preponderant evidence that his medical conditions caused a

deficiency in either his attendance or his conduct. ID at 3; see Henderson,

117 M.S.P.R. 313, ¶ 16. Because the administrative judge did not render explicit

findings in this regard, we hereby supplement the initial decision to find that the

appellant failed to show by preponderant evidence that his medical conditions

prevented him from being regular in attendance or caused him to act

inappropriately. See Henderson, 117 M.S.P.R. 313, ¶ 16. To this end, the record

is devoid of any attendance records or leave requests, and it provides no clear

indication of how much work the appellant missed as a result of his medical

issues. IAF, Tab 6 at 70, Tab 18, Hearing Recording (HR) at 17:30-19:00

(testimony of the appellant’s coworker, file 1); 1:00:07-1:00:48, 1:19:17-1:19:58

(testimony of the appellant, file 1); 26:02-27:11 (testimony of the appellant’s

supervisor, file 2). Moreover, both the appellant and the appellant’s supervisor

explicitly testified that the appellant never had any conduct or behavioral issues.

HR at 1:20:14-1:20:29 (testimony of the appellant, file 1); 25:30-25:58

(testimony of the appellant’s supervisor, file 2). Thus, the appellant failed to

show that his medical conditions caused a deficiency in his performance,

4
attendance, or conduct, or that they were incompatible with useful and efficient

service or retention in his position. See Henderson, 117 M.S.P.R. 313, ¶ 16; see

also Jackson, 118 M.S.P.R. 6, ¶¶ 7-8.

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

3

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

5
If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

6
race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

7
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

4

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

8
Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

9