Leonardo C. Bactad, Petitioner, v. Merit Systems Protection Board, Respondent, 47 F.3d 1183 (Fed. Cir. 1995)

Leonardo C. Bactad appeals a final decision of the Merit Systems Protection Board, Docket No. SE-0831-94-0064-I-1, which dismissed his appeal for retirement benefits for lack of jurisdiction. The Board's initial decision of December 15, 1993, became final when Mr. Bactad's petition for review was denied on June 15, 1994. We affirm.

DISCUSSION

In October of 1993, Mr. Bactad sent a letter to the Seattle Regional Office of the Board inquiring as to his eligibility for civil service retirement benefits based on his prior status as a United States government employee. The Administrative Judge ("AJ") treated the letter as an appeal. The appeal was ultimately dismissed because Mr. Bactad failed to show that the Office of Personnel Management had rendered a final decision on the matter.

The Board's jurisdiction over retirement benefit cases is defined by 5 U.S.C. § 8347(d) (1), which states that "an administrative action or order affecting the rights or interests of an individual or of the U.S. under this subchapter may be appealed to the [MSPB] under procedures prescribed by the Board." The "administrative action or order" referred to in Sec. 8347(d) (1) is a "final decision" by OPM. See 5 C.F.R. Sec. 831.110 (1993). Thus, a person seeking retirement benefits must first apply to OPM to establish his entitlement to benefits. If dissatisfied with OPM's decision, the applicant may seek review by the MSPB.

The government states in its brief that apparently Mr. Bactad has never filed an application for benefits with OPM. Mr. Bactad does not state that he did. He simply asked the MSPB and now asks this court to award him benefits. Mr. Bactad must apply to OPM first to establish his rights and must submit evidence to that agency of his employment. Neither the MSPB nor this court can undertake to investigate his claim or simply award benefits. We may only review his entitlement based on the record considered by OPM if OPM denies him benefits.

The Board is directed to forward Mr. Bactad's initial inquiry to OPM.