Ladiero v. Merit Systems Protection Board

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).
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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
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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.
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