Remedios Labrador v. Merit Systems Protection Board

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
REMEDIOS LABRADOR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1986
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0831-22-0342-I-1.
______________________
Decided: August 11, 2025
______________________
R EMEDIOS LABRADOR , San Narciso, Philippines, pro se.
E LIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by A LLISON
J ANE B OYLE , KATHERINE MICHELLE SMITH .
______________________
Before R EYNA , STOLL, and C UNNINGHAM , Circuit Judges.
P ER C URIAM .
Case: 24-1986 Document: 25 Page: 1 Filed: 08/11/2025

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LABRADOR v. MSPB 2
Remedios Labrador seeks review of a final decision of
the Merit Systems Protection Board, which dismissed her
appeal for lack of jurisdiction. For the following reasons,
we affirm.
B ACKGROUND
Ms. Labrador’s late husband, Vicente R. Labrador,
worked for twenty-six years as a civilian employee of the
U.S. Department of the Navy. In 2007, Ms. Labrador sub-
mitted an application to the Office of Personnel Manage-
ment (OPM) requesting to make a survivorship deposit into
the Civil Service Retirement System (CSRS) based on her
husband’s civil service. OPM denied her application and
her subsequent request for reconsideration, and Ms. Lab-
rador appealed to the Merit Systems Protection Board.
The Administrative Judge affirmed OPM’s decision, find-
ing that, although Mr. Labrador had been in federal ser-
vice, he was covered not by CSRS but rather by a
negotiated retirement plan pursuant to a collective bar-
gaining agreement (CBA). Therefore, Ms. Labrador was
not eligible for CSRS benefits and could not make a deposit
into the CSRS fund. The Administrative Judge’s initial de-
cision became the Board’s final decision in 2008 when the
Board denied Ms. Labrador’s subsequent petition for re-
view. We affirmed, explaining that “[o]n appeal, Ms. Lab-
rador d[id] not seriously contest that her late husband was
not subject to the CSRS, that he never made contributions
to the CSRS fund, or that his retirement was alternatively
provided for by the CBA.” Labrador v. Off. of Pers. Mgmt.,
332 F. App’x 613, 614 (Fed. Cir. 2009).
In April 2022, the Office of the Clerk of the Board re-
ceived correspondence from Ms. Labrador, in which she al-
leged that OPM “improperly failed to issue a final decision
on her ‘claimed survivor entitlement to an annuity in year
2014’ under the Civil Service Retirement System (CSRS).”
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LABRADOR v. MSPB 3
SAppx10 (citation omitted).1 The Clerk’s Office issued an
Acknowledgement Order “explaining that the Board may
not have jurisdiction over the appeal due to the lack of a
final, appealable decision from OPM” and that the “appeal
might be dismissed as barred under the doctrine of res ju-
dicata or otherwise decided based on collateral estoppel
arising from the Board’s final order in 2008 that was af-
firmed on appeal.” See SAppx11–12. The Acknowledge-
ment Order required Ms. Labrador to provide evidence and
argument on both issues, which she did.
On August 22, 2022, the Administrative Judge issued
an initial decision addressing whether Ms. Labrador’s “ap-
peal [is] barred by res judicata, or alternatively, [whether]
she has met her burden of showing that the Board has ju-
risdiction over the appeal.” SAppx11. The Administrative
Judge explained that “[a]lthough jurisdiction issues are
generally addressed as a threshold matter, the entangled
nature of the arguments warrants discussion of the preclu-
sion issues first.” SAppx14.
The Administrative Judge noted that Ms. Labrador
“d[id] not challenge the Board’s or the Federal Circuit’s
competent jurisdiction in deciding her prior appeal,” nor
did she disagree “that the current and prior appeals in-
volved the same cause of action and the same parties.”
SAppx16. The Administrative Judge reasoned that “[t]he
initial decision in Labrador I[2] decided the merits of
[Ms. Labrador’s] claim” related to the survivor annuity un-
der CSRS and that the Labrador I decision was “a final
judgment on [her] claim” before the Board. SAppx16–17.
1 “SAppx” refers to the Supplemental Appendix sub-
mitted by Respondent at ECF No. 15.
2 “Labrador I” refers to Ms. Labrador’s prior appeal
before the Board, Remedios Labrador v. Office of Personnel
Management, M.S.P.B. Case No. SF-0831-08-0337-I-1. See
SAppx12.
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LABRADOR v. MSPB 4
The Administrative Judge thus concluded “that the prior
decision bars re-litigation of any issue that was or could
have been raised in that appeal,” SAppx17, and dismissed
the appeal as barred by res judicata.
The Administrative Judge then explained that, alter-
natively, the appeal should be dismissed for lack of juris-
diction because Ms. Labrador “ha[d] submitted no evidence
that an application for benefits is pending before [OPM],”
and “[s]he point[ed] to no legal basis to seek an agency re-
view of her long-closed application for survivor benefits.”
SAppx19. The Administrative Judge noted Ms. Labrador
did not provide “copies of any reconsideration letters in her
jurisdictional response, nor d[id] she contend that she was
seeking reconsideration on any issues other than the ones
previously litigated” in Labrador I. SAppx19–20. The Ad-
ministrative Judge thus found that Ms. Labrador “failed to
non-frivolously allege any circumstances that would sup-
port a finding that OPM constructively denied her request
for reconsideration” and that “[t]o the extent [Ms. Labra-
dor] was seeking reconsideration of those same issues, they
had already been finally decided and no further reconsid-
eration from OPM was available.” SAppx19. Ms. Labrador
petitioned for review of the initial decision.
The Board denied the petition for review, modified part
of the initial decision, and affirmed. The Board explained
that it modified the initial decision to “clarify that [it was]
dismissing the appeal for lack of jurisdiction.” SAppx2.
The Board reasoned that “the existence of Board jurisdic-
tion is a threshold issue in adjudicating an appeal,” and
“[t]herefore, the administrative judge should have dis-
cussed the jurisdictional issue first before addressing
whether the appeal was barred by the doctrine of res judi-
cata.” SAppx3. The Board “agree[d] with the administra-
tive judge’s conclusion that OPM did not refuse or
improperly fail to issue a final decision in this case” and
“modif[ied] the initial decision to dismiss the appeal for
lack of jurisdiction.” SAppx3. The Board also explained
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LABRADOR v. MSPB 5
that “to the extent that [Ms. Labrador] is attempting to re-
litigate OPM’s . . . decision finding that she had no right to
make a deposit into the [CSRS fund] or to receive a survi-
vor’s annuity . . . we agree with the administrative judge’s
conclusion that the appeal is barred by the doctrine of res
judicata.” Id.
Ms. Labrador now seeks review from this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
“We will uphold the Board’s decision unless it is ‘(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.’” Higgins v. Dep’t
of Veterans Affs., 955 F.3d 1347, 1353 (Fed. Cir. 2020)
(quoting 5 U.S.C. § 7703(c)). “Whether the [B]oard has ju-
risdiction over an appeal is a question of law that this court
reviews de novo.” Johnston v. Merit Sys. Prot. Bd.,
518 F.3d 905, 909 (Fed. Cir. 2008).
The Board’s jurisdiction is “limited to those actions
which are made appealable to it by law, rule, or regula-
tion.” Maddox v. Merit Sys. Prot. Bd., 759 F.2d 9, 10
(Fed. Cir. 1985); see 5 U.S.C. § 7701(a). OPM’s regulations
provide that Board review is available to “an individual or
agency whose rights or interests under the Civil Service
Retirement System . . . are affected by a final decision of
the representative of the . . . Office of Personnel Manage-
ment.” 5 C.F.R. § 831.110; see 5 U.S.C. § 8347(d)(1). The
petitioner bears the burden to prove that the Board has ju-
risdiction over her appeal. See Bennett v. Merit Sys. Prot.
Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011); 5 C.F.R.
§ 1201.56(b)(2)(i)(A).
Ms. Labrador does not challenge the Board’s determi-
nation that it lacks jurisdiction over her case. Her brief
exclusively focuses on the res judicata issue and the merits
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LABRADOR v. MSPB 6
of her entitlement to survivor benefits. See generally Pet.
Informal Br. 4–9.
We agree the Board lacks jurisdiction because nothing
in the record supports the existence of a final decision by
OPM for the Board to review and the Board only has juris-
diction over the actions made appealable to it by law.
5 C.F.R. § 831.110 (providing that Board review is availa-
ble to “an individual or agency whose rights or interests
under the Civil Service Retirement System . . . are affected
by a final decision of the representative of the . . . Office of
Personnel Management” (emphasis added)).3 As the Ad-
ministrative Judge explained, Ms. Labrador identified “no
legal basis to seek an agency review of her long-closed ap-
plication for survivor benefits” nor did she submit any “ev-
idence that an application for benefits is pending before the
agency.” SAppx19. In the absence of such evidence, the
Board properly held it lacks jurisdiction.
3 To the extent the Respondent contends this matter
does not present any constructive denial concerns, Resp.
Informal Br. 12, we briefly note there is a narrow exception
to the final decision requirement “where OPM has con-
structively denied an individual the opportunity to receive
a final decision.” Malone v. Merit Sys. Prot. Bd.,
590 F. App’x 1002, 1003 (Fed. Cir. 2015) (“Typically, con-
structive denial occurs where OPM neglects to inform the
petitioner of the right to seek reconsideration of a retire-
ment application decision, improperly denies an oppor-
tunity for reconsideration, or fails to issue a decision within
a reasonable time.” (internal citations omitted)). There is
no constructive denial here because Ms. Labrador sought
and received reconsideration of OPM’s initial decision in
2008. The “reconsideration” contemplated by Malone is re-
consideration of an initial decision, as provided in OPM’s
regulations. 5 C.F.R. § 831.109.
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LABRADOR v. MSPB 7
C ONCLUSION
We have considered Ms. Labrador’s remaining argu-
ments and are not persuaded. For the foregoing reasons,
we affirm the decision of the Board.
AFFIRMED
C OSTS
No costs.
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