NOTE: This disposition is nonprecedential.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.

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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 benefit. On March 19, 2019, Mr. Plasola filed an appeal with 

the Board challenging both OPM’s actions and the underlying 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-frivolously 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 request for judicial notice. We grant this request. We also 

previously granted his November 20, 2019 request for judicial 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 Acknowledgement 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 submissions did not demonstrate that OPM issued a final decision. 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 jurisdiction 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] order 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 denied 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, Notice 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 decision.” 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 obtain 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 disagree with Mr. Plasola that his claim was ignored and denied by OPM. We, therefore, agree with the administrative 

judge that Mr. Plasola did not establish the Board’s jurisdiction by a preponderance of the evidence. 

As in Dominado, our decision to affirm the administrative 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 review before the Board.” Id.

AFFIRMED

COSTS

The parties shall bear their own costs.

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