NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RAFAEL A. JOSEPH,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-2241
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0841-16-0228-I-1.
______________________
Decided: June 7, 2019
______________________
RAFAEL A. JOSEPH, Philadelphia, PA, pro se.
TREYER AUSTIN MASON-GALE, Office of General Coun-
sel, Merit Systems Protection Board, Washington, DC, ar-
gued for respondent. Also represented by KATHERINE
MICHELLE SMITH, TRISTAN LEAVITT.
______________________
Before NEWMAN, DYK, and WALLACH, Circuit Judges.
PER CURIAM.
2 JOSEPH v. MSPB
Petitioner Rafael A. Joseph seeks review of a final de-
cision of the Merit Systems Protection Board (“MSPB”) dis-
missing for lack of jurisdiction his claim for retirement
annuity against the Office of Personnel Management
(“OPM”). See Joseph v. Office of Pers. Mgmt., No. PH-0841-
16-0228-I-1,
2016 WL 6837492 (M.S.P.B. Nov. 15, 2016) 1
(Resp’t’s App. 1–7). The MSPB held that it lacked jurisdic-
tion over Mr. Joseph’s MSPB appeal because “OPM has not
issued an initial or final decision” in the matter.
Id. at 1;
see
id. at 17−24 (MSPB Appeal). We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(9) (2012). We affirm.
BACKGROUND
In October 2011, after over thirty years working for the
federal government, Mr. Joseph resigned from his employ-
ment with the U.S. Postal Service. See
id. at 23. During
his employment, he allegedly made contributions into the
Federal Employees’ Retirement System (“FERS”). See id.;
see also Federal Employees’ Retirement System Act of
1986, Pub. L. No. 99-335, 100 Stat. 514 (codified at 5 U.S.C.
§§ 8343a, 8349–8351, 8401–8403, 8410–8425, 8431–8445,
8451–8456, 8461–8479 (2012)). After his separation, Mr.
Joseph requested from OPM a refund of his FERS retire-
ment contributions, Resp’t’s App. 23–24, and OPM alleg-
edly issued Mr. Joseph a refund, see
id. at 21, 23.
1 An administrative judge (“AJ”) issued an initial de-
cision on November 15, 2016, see Resp’t’s App. 1, which be-
came final when Mr. Joseph withdrew his previously filed
petition for review, see
id. at 8−12 (Order Granting Appel-
lant’s Withdrawal of Petition for Review); see also 5 C.F.R.
§ 1201.113 (2019) (providing “[t]he initial decision of the
judge will become the [MSPB]’s final decision [thirty-five]
days after issuance” unless, inter alia, “(a) . . . any party
files a petition for review”). Therefore, we refer to the Ini-
tial Decision as the MSPB’s Final Decision.
JOSEPH v. MSPB 3
In March 2016, Mr. Joseph filed an appeal with the
MSPB, contesting OPM’s 2011 refund decision on the basis
that OPM erroneously ruled that he was ineligible for
FERS retirement annuity payments. See
id. at 23−24,
25−32 (supplemental briefing by Mr. Joseph); see also 5
U.S.C. §§ 8410 (“[A]n employee . . . must complete at least
[five] years of civilian service creditable . . . in order to be
eligible for an annuity . . . .”), 8424(a) (explaining that a
federal employee may, after separating from service, re-
quest and receive from OPM a lump-sum payment of the
employee’s past FERS retirement contributions, but that
such a request “voids all annuity rights” under FERS). In
April 2016, the AJ ordered Mr. Joseph to file a response in
support of jurisdiction, explaining that the MSPB was not
necessarily precluded from reviewing Mr. Joseph’s appeal,
but that he first “must submit evidence and argument es-
tablishing that he brought the refund issue to OPM’s at-
tention and [OPM] failed to advise him of his rights to
request a reconsideration decision[,] and that [OPM] did
not intend to issue any further decision.” Resp’t’s App. 34–
35. Mr. Joseph responded that “[OPM] issued a refund
check” and the “[FERS refund] check is proof that [he] was
found eligible for a refund not an annuity and [OPM] not
issuing any reconsideration or appeal rights is proof of a
final decision.”
Id. at 36; see
id. at 36−40.
In November 2016, the MSPB dismissed Mr. Joseph’s
appeal for lack of jurisdiction, finding that OPM had nei-
ther issued an initial nor final decision in Mr. Joseph’s ap-
peal. See
id. at 1−3. The MSPB reasoned “there is no
record evidence that OPM has refused to issue a final deci-
sion,” and further rejected Mr. Joseph’s argument that
OPM’s issuance of the refund check constituted a final de-
cision, stating that “[t]he check itself is evidence that OPM
took some action; perhaps at [Mr. Joseph]’s request, but not
that it considered its action erroneous.”
Id. at 2; see
id.
(“[The check] is certainly not evidence that [OPM] consid-
ered the issue[] raised by [Mr. Joseph] and had the
4 JOSEPH v. MSPB
opportunity to either sustain its initial action or reverse
it.”). The MSPB also noted how OPM had previously “ad-
vised . . . that it will issue a final decision in this matter
[about Mr. Joseph’s eligibility for a retirement benefit ef-
fective on his resignation date of October 31, 2011] once the
instant appeal has been adjudicated,” and that “[the AJ]
will hold OPM to that promise” such that “[Mr. Joseph] is
advised that he may file an appeal from any future OPM
reconsideration decision concerning the propriety of issu-
ing him refund check rather than a retirement annuity.”
Id.; see
id. at 33 (Letter from OPM to AJ).
DISCUSSION
I. Standard of Review
We will set aside the MSPB’s decision when it is, inter
alia, “arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law” or “unsupported by sub-
stantial evidence.” 5 U.S.C. § 7703(c)(1), (3). We review
whether the MSPB has jurisdiction over an appeal de novo.
Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 909 (Fed.
Cir. 2008). “The petitioner bears the burden of establishing
error in the MSPB’s decision.” Jenkins v. Merit Sys. Prot.
Bd.,
911 F.3d 1370, 1373 (Fed. Cir. 2019) (internal quota-
tion marks, brackets, and citation omitted).
The MSPB has jurisdiction over “an administrative ac-
tion or order affecting the rights or interests of an individ-
ual . . . under [the FERS as] administered by [OPM],” 5
U.S.C. § 8461(e)(1); see Miller v. Office of Pers. Mgmt.,
449
F.3d 1374, 1377 (Fed. Cir. 2006) (stating that the MPSB
has statutory jurisdiction over OPM’s administration of the
law establishing FERS), which typically issues its determi-
nation as a final decision, see 5 C.F.R. § 841.308 (“[A]n in-
dividual whose rights or interests under FERS are affected
by a final decision of OPM may request MSPB to review
the decision . . . .” (emphasis added)). For purposes of OPM
decisions under FERS, OPM’s regulations identify two
types of decisions that are final and appealable to the
JOSEPH v. MSPB 5
MSPB: (1) a “reconsideration” decision, under 5 C.F.R.
§ 841.306(e) and (2) a decision that expressly provides for
an opportunity to appeal without “an opportunity [for a
claimant] to request reconsideration,” under 5 C.F.R.
§ 841.307. 2
II. The MSPB Lacks Jurisdiction over Mr. Joseph’s Ap-
peal
Mr. Joseph contends the MSPB erred in dismissing his
challenge to OPM’s refund decision, arguing that he was
entitled to an annuity from OPM. Pet’r’s Br. 1. He further
claims that “OPM failed to respond to [his request] for re-
consideration.”
Id. We disagree.
The MSPB did not err in determining that it lacked
subject-matter jurisdiction over Mr. Joseph’s appeal. Mr.
Joseph has failed to identify any supporting evidence of the
alleged refund or any initial or final written decision by
OPM on the issue of his entitlement to a refund of FERS
payments rather than a retirement annuity. See generally
id. Additionally, Mr. Joseph has not alleged with any sup-
porting evidence that he filed a request for reconsideration
before OPM. See generally
id. The record similarly lacks
evidence of a refund check, or an initial or final decision by
OPM. See generally Resp’t’s App. Therefore, Mr. Joseph
has failed to meet his burden to prove that OPM has issued
an initial or final decision with notice of MSPB appeal
rights. See
Jenkins, 911 F.3d at 1373. 3 Although this court
2 By contrast, an OPM “decision subject to reconsid-
eration” is not a final decision appealable to the MSPB un-
der OPM’s regulations. 5 C.F.R. § 841.305(b).
3 We are aware that the MSPB has previously held
that jurisdiction existed where OPM “has refused or im-
properly failed to issue a final decision” such as failing to
issue a decision within a reasonable time. Stillwell v. Merit
Sys. Prot. Bd., 629 F. App’x 998, 999 (Fed. Cir. 2015)
6 JOSEPH v. MSPB
generally interprets the pleadings of a pro se petitioner lib-
erally, see, e.g., Durr v. Nicholson,
400 F.3d 1375, 1380
(Fed. Cir. 2005), we may not “take a liberal view of [a] ju-
risdictional requirement [such as the requirement to have
a final decision] and set a different requirement for pro se
litigants only,” Kelley v. Sec’y, U.S. Dep’t of Labor,
812 F.2d
1378, 1380 (Fed. Cir. 1987) (italics omitted). Because Mr.
Joseph filed his MSPB appeal before obtaining a final, ap-
pealable decision by OPM, the MSPB correctly found his
appeal premature.
Mr. Joseph also makes three general allegations in
passing, which he raises for the first time in his briefing on
appeal, that his resignation was “coerced,” that OPM “vio-
lat[ed]” a collective bargaining agreement, and that he is
owed “[d]isability [r]etirement.” Pet’r’s Br. 1; see Resp’t’s
App. 23−40 (Mr. Joseph’s briefing before the MSPB). How-
ever, these arguments similarly go to the merits of Mr. Jo-
seph’s appeal, which we have no jurisdiction over. Mr.
Joseph may, if he chooses and if properly exhausted, make
(internal quotation marks omitted) (citing Malone v. Merit
Sys. Prot. Bd., 590 F. App’x 1002, 1003 (Fed. Cir. 2015) (ex-
plaining that for “constructive denial of a final decision, the
MSPB considers OPM’s express representations regarding
the allegedly forthcoming decision, as well as a litigant’s
diligence in requesting a decision”)); see Nava v. Merit Sys.
Prot. Bd.,
41 F.3d 1520 (Table) (Fed. Cir. 1994) (acknowl-
edging that the MPSB has held in another case that OPM’s
fourteen-month delay in responding to an individual’s re-
quest for reconsideration did not preclude MSPB jurisdic-
tion). Here, however, OPM has expressly stated it will be
issuing a final decision on the merits of Mr. Joseph’s MSPB
Appeal, see Resp’t’s App. 33, and therefore we do not find
constructive denial as an applicable, narrow exception per-
mitting the MSPB to take jurisdiction in this case without
a final or reconsideration decision from OPM.
JOSEPH v. MSPB 7
these arguments regarding OPM’s actions after OPM is-
sues its decision, but this court will not consider them here.
Accordingly, we affirm the MSPB’s dismissal of this case
for lack of jurisdiction.
CONCLUSION
We have considered Mr. Joseph’s remaining arguments
and conclude that they are without merit. The Final Deci-
sion of the Merit Systems Protection Board is
AFFIRMED
COSTS
No costs.
