Francisco D. Caparaz, Petitioner, v. Office of Personnel Management, Respondent, 940 F.2d 677 (Fed. Cir. 1991)

Petitioner Francisco C. Caparaz appeals the dismissal by the Merit Systems Protection Board (MSPB) of his appeal from an alleged denial of civil service retirement annuity benefits by the Office of Personnel Management (OPM). Caparaz v. Office of Personnel Management, No. SE08318910730, (Apr. 17, 1990). We agree with the MSPB and affirm the dismissal.

DISCUSSION

The MSPB properly determined that Mr. Caparaz did not present evidence of an OPM decision from which he could appeal to the MSPB. The MSPB, like this court, is limited as to the matters which it can hear and decide. See 5 C.F.R. Sec. 1201.3(9) (1991) (the MSPB has jurisdiction over appeals of " [d]eterminations affecting the rights or interest of an individual ... under the Civil Service Retirement System"); 28 U.S.C. § 1295(a) (9) (1988) (the Federal Circuit has exclusive jurisdiction to hear appeals from final decisions or orders of the MSPB). Further, 5 C.F.R. Sec. 110 (1991) states that a right of appeal to the MSPB lies from a final decision of OPM.

The burden to establish that the MSPB or this court has jurisdiction lies with Mr. Caparaz. See Cheeseman v. Office of Personnel Management, 791 F.2d 138 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987). In other words, to establish MSPB jurisdiction, Mr. Caparaz was required to show that he timely appealed a decision of the OPM to the MSPB. Administrative Judge Montage sought information from Mr. Caparaz that would show the existence of such an OPM decision when she issued the show cause order of October 13, 1989. Then as now, Mr. Caparaz did not show that there was an OPM decision and, without an OPM decision, neither the MSPB nor this court can have jurisdiction to hear Mr. Caparaz's request for benefits.¹