Cecil Allen Sanders, Jr. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CECIL ALLEN SANDERS, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2058
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0843-17-0575-I-1.
______________________
Decided: May 17, 2024
______________________
CECIL ALLEN SANDERS , J R., Lakeworth, FL, pro se.
ELIZABETH W. F LETCHER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , HUGHES , and STARK, Circuit Judges.
P ER CURIAM .
Case: 23-2058 Document: 43 Page: 1 Filed: 05/17/2024

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SANDERS v. MSPB 2
Cecil Allen Sanders, Jr. appeals a final decision of the
Merit Systems Protection Board (“Board”), denying review
and dismissing his appeal for lack of jurisdiction. We af-
firm.
On March 31, 2017, the Office of Personnel Manage-
ment (“OPM”) issued an initial decision denying Mr. Sand-
ers’ claim for survivor annuity under the Federal Employee
Retirement System (“FERS”), which was based on his de-
ceased spouse’s service as a federal employee. The initial
decision expressly stated that it was an “initial decision.”
App’x 22.1 It further provided instructions for requesting
reconsideration if the claimant, here Mr. Sanders,
“wish[ed] to dispute [the] findings.” Id.
On June 14, 2017, Mr. Sanders filed an appeal to the
Board alleging that OPM improperly denied him survivor
benefits. In his appeal form, Mr. Sanders indicated that he
had not “received a final or reconsideration decision from
OPM.” App’x 33. OPM then moved to dismiss the Board
appeal for lack of jurisdiction, pointing out that it had
never issued a final decision to Mr. Sanders because he had
not requested reconsideration. Mr. Sanders responded to
the motion, but did not dispute the lack of final decision or
his failure to request reconsideration. A Board administra-
tive judge (“AJ”) issued a decision on August 15, 2017,
granting OPM’s motion and dismissing the appeal.
Mr. Sanders next filed a petition seeking Board review
of the AJ’s decision. In his petition, Mr. Sanders argued
for the first time that after receiving OPM’s initial decision,
he “immediately sent a reconsideration” to OPM but “ha[d]
not been sent anything” in response. App’x 21.
The Board then issued a final order on June 2, 2023,
denying the petition for review and affirming the AJ’s
1 “App’x” refers to the appendix filed with the gov-
ernment’s informal brief.
Case: 23-2058 Document: 43 Page: 2 Filed: 05/17/2024

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SANDERS v. MSPB 3
dismissal order. Based on its finding that Mr. Sanders had
not received sufficient notice of his burden to establish ju-
risdiction, see Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641,
643 (Fed. Cir. 1985), the Board addressed his newly-raised
contentions relating to jurisdiction. After doing so, it de-
termined “[i]t is undisputed that OPM did not issue a re-
consideration decision” and, further, Mr. Sanders “failed to
provide any evidence showing that OPM has refused to is-
sue a reconsideration decision, state the duration of the
purported delay, or explain his efforts to contact OPM in
the interim.” App’x 3.
Mr. Sanders timely appealed. We have jurisdiction un-
der 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
We review whether the Board has jurisdiction over an
appeal de novo. See Johnston v. Merit Sys. Prot. Bd., 518
F.3d 905, 909 (Fed. Cir. 2008). The petitioner bears the
burden to prove that the Board has jurisdiction over his
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).
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). The Board has statutory
jurisdiction over appeals of OPM’s administration of FERS
applications. See Miller v. Office of Pers. Mgmt., 449 F.3d
1374, 1377 (Fed. Cir. 2006); 5 U.S.C. § 8461(e)(1). How-
ever, OPM’s regulations limit this jurisdiction to “final de-
cision[s] of OPM.” 5 C.F.R. § 841.308. A narrow exception
to the final decision requirement “exists where OPM has
constructively denied an individual the opportunity to re-
ceive a final decision.” Malone v. Merit Sys. Prot. Bd., 590
F. App’x 1002, 1003 (Fed. Cir. 2015).
Mr. Sanders does not challenge the Board’s determina-
tion that it lacked jurisdiction over his case. Nor does he
contend or even suggest that OPM constructively denied a
request for reconsideration. Therefore, we agree with the
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SANDERS v. MSPB 4
Board that Mr. Sanders has not met his burden to show
that the Board has jurisdiction over his appeal.
AFFIRMED
COSTS
No costs.
Case: 23-2058 Document: 43 Page: 4 Filed: 05/17/2024

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