Teofilo C. CASIANO, Petitioner,
MERIT SYSTEMS PROTECTION BOARD, Respondent.
United States Court of Appeals, Federal Circuit.
Feb. 23, 1995.
48 F.3d 1238
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
64 M.S.P.R. 219.
Before ARCHER, Chief Judge, SKELTON, Senior Circuit Judge, and SCHALL, Circuit Judge.
Teofilo C. Casiano seeks review from a decision of the Merit Systems Protection Board (board), Docket No. SE-0831-94-0447-I-1,1 dismissing his appeal for lack of jurisdiction. We affirm.
Casiano filed an appeal with the board on April 6, 1994 seeking disability retirement benefits under the Civil Service Retirement Act (CSRA). On April 14, 1994, the administrative judge (AJ) assigned to the case issued an acknowledgment order, which explained the board does not have jurisdiction over the appeal if the Office of Personnel Management (OPM) has not yet issued a final decision on Casiano's request for benefits. The administrative judge noted that Casiano has the burden of proving the board has jurisdiction and thus ordered him to "file evidence and argument to prove that this action is within the Board's jurisdiction."
OPM responded to the acknowledgement order by stating it had not yet issued a final decision on Casiano's request for benefits but that it would process his request and issue its decision. None of Casiano's submissions addressed jurisdiction. After considering the parties' responses to his order, the AJ dismissed Casiano's appeal in the initial decision of July 1, 1994.
We review decisions of the board under a narrow standard of review prescribed by statute. We must affirm the board's decision unless it is shown to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c).
The board does not have jurisdiction over a request for benefits under the CSRA until OPM has issued its final decision. 5 U.S.C. Sec. 8347(d); 5 C.F.R. Secs. 831.109, 831.110. As the appellant before the board, Casiano bears the burden of proving the board has jurisdiction over his appeal. 5 C.F.R. Sec. 1201.56(a)(2)(i). The board found that Casiano failed to carry that burden and we agree. Nothing in the record even suggests that there was ever a final decision issued by OPM on Casiano's request for benefits. Accordingly, we must affirm the decision of the board dismissing Casiano's appeal.
The July 1, 1994 initial decision of the administrative judge became the final appealable decision of the board on September 8, 1994 when it denied Casiano's petition for review