Case: 19-2453   Document: 31     Page: 1    Filed: 03/17/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                 JESSE B. PLASOLA,
                     Petitioner

                            v.

      MERIT SYSTEMS PROTECTION BOARD,
                    Respondent
              ______________________

                       2019-2453
                 ______________________

    Petition for review of the Merit Systems Protection
 Board in No. SF-0841-19-0308-I-1.
                 ______________________

                Decided: March 17, 2020
                ______________________

    JESSE B. PLASOLA, Oxnard, CA, pro se.

     SARA B. REARDEN, Office of General Counsel, United
 States Merit Systems Protection Board, Washington, DC,
 for respondent. Also represented by KATHERINE MICHELLE
 SMITH, TRISTAN LEAVITT.
                  ______________________

    Before PROST, Chief Judge, CLEVENGER and MOORE,
                     Circuit Judges.
Case: 19-2453     Document: 31     Page: 2    Filed: 03/17/2020




 2                                            PLASOLA   v. MSPB



 PER CURIAM.
      Jesse Plasola petitions for review of a Merit Systems
 Protection Board (“Board”) decision dismissing an appeal
 for lack of jurisdiction regarding a challenge to an Office of
 Personal Management (“OPM” or “Agency”) decision. See
 Plasola v. Office of Pers. Mgmt., No. SF-0841-19-0308-I-1,
 2019 WL 2745979 (M.S.P.B. June 26, 2019) (“Decision”).
 We affirm. 1
                               I
      Mr. Plasola is a Federal Employee Retirement System
 (“FERS”) annuitant. A California state court awarded Mr.
 Plasola’s former spouse a marital share of his retirement
 benefits. OPM then notified Mr. Plasola that OPM would
 be withholding some of Mr. Plasola’s FERS benefits and
 start providing his former spouse a recurring monthly ben-
 efit. On March 19, 2019, Mr. Plasola filed an appeal with
 the Board challenging both OPM’s actions and the under-
 lying California state court order.
     On March 22, 2019, the administrative judge issued an
 Acknowledgement Order that explained that the Board
 “may not have jurisdiction over the matters raised in this
 appeal and notified [Mr. Plasola] of his burden to non-friv-
 olously allege facts showing such jurisdiction.” Decision,
 slip op. at 2. The Acknowledgement Order noted that Mr.
 Plasola may demonstrate that the Board has jurisdiction
 over his appeal if Mr. Plasola can show, by a preponderance
 of the evidence, that OPM issued a final decision.




     1   On January 15, 2020, Mr. Plasola submitted a re-
 quest for judicial notice. We grant this request. We also
 previously granted his November 20, 2019 request for judi-
 cial notice. In formulating its opinion, the panel assessed
 the relevance of these additional documents.
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 PLASOLA   v. MSPB                                           3



      After Mr. Plasola filed his response to the Acknowl-
 edgement Order, the Agency moved to dismiss. On June
 26, 2019, the administrative judge granted the Agency’s
 motion to dismiss. In concluding that Mr. Plasola did not
 establish that the Board had jurisdiction over his appeal,
 the administrative judge first found that Mr. Plasola’s sub-
 missions did not demonstrate that OPM issued a final de-
 cision. The administrative judge further determined that
 there was no evidence that OPM refused to issue a final
 decision.
     The initial decision became the Board’s final decision
 and Mr. Plasola petitioned for our review. We have juris-
 diction under 28 U.S.C. § 1295(a)(9).
                               II
     Whether the Board has jurisdiction to adjudicate an
 appeal is a question of law that we review de novo. Forest
 v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
 Mr. Plasola bears the burden of establishing the Board’s
 jurisdiction by a preponderance of the evidence. 5 C.F.R.
 § 1201.56(b)(2). The Board’s jurisdiction in reviewing an
 OPM decision is generally limited to appeals involving a
 final decision. See Dominado v. Merit Sys. Prot. Bd., 641
 F. App’x 1001, *1003 (Fed. Cir. Mar. 10, 2016) (citing 5
 C.F.R. §§ 831.109, 831.110, 841.306, 841.307).
                               III
     On petition for review, Mr. Plasola argues that “OPM
 did not render a decision in the statutory time” and that he
 “had to assume his claim was ignored and denied by OPM.”
 Petr’s’s Informal Br. at 1. 2 We disagree. Mr. Plasola does



     2   In his reply brief, Mr. Plasola argues that he is
 challenging “the constitutionality of the state court[’s] or-
 der and jurisdiction.” Petr’s’s Reply Br. 2–3. He posits that
 such challenges are outside of the jurisdiction of OPM and
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 4                                           PLASOLA   v. MSPB



 not provide any support that his claim was ignored and de-
 nied by OPM. Rather, the record reflects that on October
 8, 2019 OPM sent Mr. Plasola a letter informing him that
 his “request for reconsideration dated July 15, 2019, has
 been reviewed in accordance with the applicable sections of
 Title 5, Code of Federal Regulations. [OPM] cannot make
 a final decision at this time. . . . [OPM] will make a final
 decision when [OPM has] all the information [OPM]
 need[s].” Plasola v. Merit Sys. Prot. Bd., No. 19-2453, No-
 tice to the Court, ECF No. 19 (Nov. 20, 2019).
      In addition, and as we have previously acknowledged,
 in limited instances the Board has found jurisdiction when
 OPM “has refused or improperly failed to issue a final de-
 cision.” Dominado, 641 F. App’x at *1003 (quoting Okello
 v. Office of Pers. Mgmt., 120 M.S.P.R. 498, 502 (2014)); see
 also Malone v. Merit Sys. Prot. Bd., 590 F. App’x 1002,
 *1003 (Fed. Cir. Feb. 4, 2015). In these instances, the
 Board has exercised jurisdiction because the process to ob-
 tain a final decision had “dragged on for years,” or OPM
 had given an indication that it did not intend to act. See
 Dominado, 641 F. App’x at *1003; see also Malone, 590 F.
 App’x at *1003–04. Here, the case has not dragged on for
 years and OPM has not provided any indication that it does
 not intend to issue a final decision. Accordingly, we disa-
 gree with Mr. Plasola that his claim was ignored and de-
 nied by OPM. We, therefore, agree with the administrative
 judge that Mr. Plasola did not establish the Board’s juris-
 diction by a preponderance of the evidence.
     As in Dominado, our decision to affirm the administra-
 tive judge’s determination results in the “case remain[ing]
 with OPM until a final decision is rendered, or


 as such, we should assume jurisdiction of these challenges.
 Id. Putting aside that this argument was first raised in
 Mr. Plasola’s reply brief, these challenges are outside the
 scope of our jurisdiction. See 28 U.S.C. § 1295.
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 PLASOLA   v. MSPB                                           5



 circumstances arise indicating that OPM does not intend
 to issue a timely, appealable decision.” Dominado, 641 F.
 App’x at *1004. “At such time, [Mr. Plasola] may seek re-
 view before the Board.” Id.
                          AFFIRMED
                             COSTS
    The parties shall bear their own costs.
