Ladiero v. Merit Systems Protection Board , 181 F. App'x 987 ( 2006 )


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  •              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    06-3004
    REGALADO F. LADIERO,
    Petitioner,
    v.
    MERIT SYSTEMS PROTECTION BOARD,
    Respondent.
    ____________________
    DECIDED: May 8, 2006
    ____________________
    Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
    PER CURIAM.
    Regalado F. Ladiero appeals from the final decision of the Merit Systems
    Protection Board (“Board”) dismissing his appeal for lack of jurisdiction. Ladiero
    v. Office of Pers. Mgmt., No. SF-0831-0500348-I-1 (M.S.P.B. Aug. 5, 2005).
    Because the Board correctly determined that it lacked jurisdiction to review
    Ladiero’s appeal, we affirm.
    BACKGROUND
    Ladiero applied for a civil service retirement annuity under the Civil
    Service Retirement System (“CSRS”) based on his employment in the
    Philippines with the Department of the Navy. On December 14, 2004, the Office
    of Personnel Management (“OPM”) denied Ladiero’s application for annuity on
    the basis that he had not served in a position subject to the necessary conditions
    under CSRS. OPM indicated that this was an initial decision and that Ladiero
    could request reconsideration of the decision.
    On January 17, 2005, Ladiero filed an appeal to the Board, stating that he
    was appealing a reconsideration decision by OPM, but enclosing only the initial
    decision, dated December 14, 2004. On February 9, 2005, an administrative
    judge (“AJ”) notified Ladiero that unless he showed that OPM had issued a final
    reconsideration decision, his appeal would be dismissed for lack of jurisdiction.
    Ladiero did not timely respond. OPM responded, stating that it had issued only
    an initial decision, not a final reconsideration decision, and it filed a motion to
    dismiss Ladiero’s appeal for lack of jurisdiction.
    On May 4, 2005, the AJ dismissed Ladiero’s appeal for lack of jurisdiction.
    The AJ noted in its decision that an individual may appeal to the Board only after
    a final decision has been issued by OPM, and that a final decision is one that is
    issued in response to a request for reconsideration of an initial decision by OPM.
    The AJ found that there was no evidence demonstrating that Ladiero had
    requested reconsideration of the initial decision, or that OPM had issued a final
    decision. Without any evidence that a final decision had been issued, the AJ
    determined that the Board lacked jurisdiction over Ladiero’s appeal.
    Ladiero appealed the AJ’s decision to the full Board, which denied his
    petition for review, thereby rendering the AJ’s decision final.     See 
    5 C.F.R. § 1201.113
    (b) (2004).
    06-3004                                   2
    Ladiero timely appealed to this court, and we have jurisdiction pursuant to
    
    28 U.S.C. § 1295
    (a)(9) (2000).
    DISCUSSION
    Whether the Board has jurisdiction to adjudicate a particular appeal is a
    question of law that we review de novo. Campion v. Merit Sys. Prot. Bd., 
    326 F.3d 1210
    , 1213 (Fed. Cir. 2003). Ladiero, as the petitioner, has the burden of
    establishing the Board’s jurisdiction by a preponderance of the evidence. See 
    id. at 1213-14
    .
    On appeal, Ladiero contends that OPM fully adjudicated his claim, and
    thus that the Board should have reviewed his claim. Also, Ladiero alleges that
    the initial decision by OPM provided no instructions pertaining to a request for
    reconsideration. The government responds that OPM’s decision sent to Ladiero
    expressly stated that “this constitutes the initial decision” of the OPM and
    provided instructions on how to request reconsideration of that decision. Also,
    the government points out that the AJ provided Ladiero with the opportunity to
    show that OPM had issued a decision from a request for reconsideration, but that
    Ladiero failed to timely respond.
    We agree with the government that the Board did not have jurisdiction
    over Ladiero’s appeal. An individual may appeal to the Board only after a final
    decision has been rendered by OPM. 
    5 C.F.R. §§ 831.109
     and .110. When OPM
    issues an initial decision with an opportunity to request reconsideration, a final
    decision is the decision rendered after a request for reconsideration has been
    made. 
    5 C.F.R. § 831.109
    (f)(1).       OPM issued to Ladiero one decision that
    06-3004                                 3
    expressly stated that “this constitutes the initial decision of the Office of
    Personnel Management.” The letter further provided that if Ladiero believed that
    the decision was not in accordance with law and regulations, he could “request
    reconsideration of the decision by following the procedures in the enclosure.”
    Attached to the letter were two pages of information regarding how to request
    reconsideration of an OPM decision. OPM’s decision therefore clearly stated
    that it was an initial decision and provided instructions on how to seek
    reconsideration of that decision. The Board found no evidence indicating that
    Ladiero had requested reconsideration of the initial decision by OPM. Thus,
    without a reconsideration decision, there was no final decision rendered on
    Ladiero’s claim and, without a final decision, the Board did not have jurisdiction to
    consider Ladiero’s claim.
    Because the Board correctly determined that it lacked jurisdiction to
    review Ladiero’s appeal, we affirm.
    06-3004                                  4
    

Document Info

Docket Number: 2006-3004

Citation Numbers: 181 F. App'x 987

Judges: Bryson, Gajarsa, Lourie, Per Curiam

Filed Date: 5/8/2006

Precedential Status: Non-Precedential

Modified Date: 8/3/2023