Case: 20-2055 Document: 40 Page: 1 Filed: 02/10/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID SHU,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
OFFICE OF PERSONNEL MANAGEMENT,
Intervenor
______________________
2020-2055
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0842-20-0488-I-1.
______________________
Decided: February 10, 2021
______________________
DAVID SHU, Camarillo, CA, pro se.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by TRISTAN L. LEAVITT,
KATHERINE MICHELLE SMITH.
STEPHANIE FLEMING, Commercial Litigation Branch,
Case: 20-2055 Document: 40 Page: 2 Filed: 02/10/2021
2 SHU v. MSPB
Civil Division, United States Department of Justice, Wash-
ington, DC, for intervenor. Also represented by JEFFREY B.
CLARK, LISA LEFANTE DONAHUE, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before LOURIE, DYK, and MOORE, Circuit Judges.
PER CURIAM.
Petitioner David Shu appeals a final decision of the
Merit Systems Protection Board (“Board”). Because the
Board properly dismissed Mr. Shu’s claim for lack of juris-
diction, we affirm.
BACKGROUND
Mr. Shu began working for the United States Postal
Service as a letter carrier in 2000 or 2001. On September
21, 2003, Mr. Shu was injured on the job, after which he
was absent from work. On November 7, 2003, during his
absence, he was discharged on a charge of irregular attend-
ance. After an appeal, Mr. Shu was reinstated on Novem-
ber 6, 2010 and continued to work as a letter carrier. The
administrative law judge in Mr. Shu’s case ordered the
Postal Service to credit Mr. Shu with the period of his ab-
sence from work for purposes of receiving retirement bene-
fits. See Shu v. Merit Sys. Prot. Bd., 689 F. App’x 971, 972
(Fed. Cir. 2017).
On September 21, 2013, while on duty and driving a
postal vehicle, Mr. Shu was involved in an accident with a
privately-owned vehicle. See id. at 972–73 (citing Shu v.
U.S. Postal Serv., SF-0752-14-011-I-1, 2014 WL 5424298,
at *2 (M.S.P.B. Oct. 23, 2014)). On November 4, 2013, the
Postal Service terminated Mr. Shu’s employment on the
basis of workplace misconduct for failure to report an acci-
dent. In 2015, an arbitrator found just cause for removal,
and the removal became effective on March 24, 2015. Mr.
Shu appealed to the Board, which dismissed for lack of
Case: 20-2055 Document: 40 Page: 3 Filed: 02/10/2021
SHU v. MSPB 3
jurisdiction, and we affirmed. See generally Shu, 689 F.
App’x 971.
After his removal, the Postal Service notified Mr. Shu
that he met the age and service requirements to apply for
an annuity under the Federal Employees’ Retirement Sys-
tem and that, if he had filed an application for retirement,
he could contact the Office of Personnel Management
(“OPM”) for information on the status of his claim. Mr. Shu
emailed OPM on March 31, 2015, October 8, 2019, October
13, 2019, and October 25, 2019, to inquire whether he was
eligible for an annuity, which retirement package he
should select, and how much money he would receive. Mr.
Shu asserts that OPM never responded except via auto-
mated replies to confirm the receipt of his emails.
Mr. Shu appealed to the Board on May 26, 2020, argu-
ing that OPM had failed to explain the available retirement
packages. The Board dismissed for lack of jurisdiction on
the ground that OPM had not issued an appealable final
decision. Mr. Shu appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
I
We review decisions of the Board on a limited basis,
setting aside its actions, findings, or conclusions only if we
find them “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Whether the Board has jurisdiction is a
question of law that we review de novo. Whiteman v. Dep’t
of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012) (citing
Stoyanov v. Dep’t of the Navy, 474 F.3d 1377, 1379 (Fed.
Cir. 2007)). “Before the Board, an appellant bears the bur-
den of establishing Board jurisdiction.” Kahn v. Dep’t of
Just., 528 F.3d 1336, 1341 (Fed. Cir. 2008) (citing
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4 SHU v. MSPB
McCormick v. Dep’t of the Air Force, 307 F.3d 1339, 1340
(Fed. Cir. 2002)); see also 5 C.F.R. § 1201.56(b)(2)(i)(A) (ap-
pellant must show jurisdiction by preponderance of the ev-
idence).
The Board’s jurisdiction “is limited to actions desig-
nated as appealable to the Board ‘under any law, rule, or
regulation.’” Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885,
886 (Fed. Cir. 1998) (quoting 5 U.S.C. § 7701(a)). Mr. Shu
apparently seeks review here pursuant to the provisions of
the Federal Employees’ Retirement System (“FERS”). The
Board has authority over FERS appeals under 5 U.S.C.
§ 8461(e)(1). Okello v. Off. of Pers. Mgmt., 120 M.S.P.R.
498, 502 (2014) (citing 5 U.S.C. § 8461(e)(1)). The Board
generally has jurisdiction over a FERS appeal only after
OPM has a final decision. Id.
II
Here, OPM never issued a final decision—or any deci-
sion—regarding Mr. Shu’s retirement benefits, and the
only application for retirement Mr. Shu submitted was
blank. Mr. Shu argues, however, that OPM’s lack of re-
sponse to his inquiries is essentially equivalent to a denial
of retirement benefits. Mr. Shu also argues that the ad-
ministrative law judge assigned to his appeal was biased
against him based on that judge’s past decisions adverse to
Mr. Shu.
The Board’s jurisdiction generally depends on a final
OPM decision, and the Board does not “lightly assume ju-
risdiction over a FERS annuity appeal” outside the explicit
regulatory requirements of a final decision. Okello, 120
M.S.P.R. at 503. Mr. Shu, however, relies on a narrow ex-
ception allowing the Board to “take jurisdiction over an ap-
peal concerning a retirement matter in which OPM has
refused or improperly failed to issue a final decision.” Id.
at 502 (citing McNeese v. Off. of Pers. Mgmt., 61 M.S.P.R.
70, 74 (1994), aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (un-
published table decision)). The exception applies when
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SHU v. MSPB 5
“the appellant has made repeated requests for such a deci-
sion and the evidence indicates that OPM does not intend
to issue a reconsideration decision.” Powell v. Off. of Pers.
Mgmt., 114 M.S.P.R. 580, 582 (2010). We have approved
the Board’s jurisdiction in similar circumstances where
there has been a “constructive denial.” See Malone v. Merit
Sys. Prot. Bd., 590 F. App’x 1002, 1003 (Fed. Cir. 2015)
(noting that “constructive denial occurs where OPM ne-
glects to inform the petitioner of the right to seek reconsid-
eration of a retirement application decision, improperly
denies an opportunity for reconsideration, or fails to issue
a decision within a reasonable time” (citations omitted));
see also Stillwell v. Merit Sys. Prot. Bd., 629 F. App’x 998,
999 (Fed. Cir. 2015) (holding that OPM, and not the Board,
has jurisdiction over a FERS application “until a final or
reconsideration decision is reached, or some basis exists to
conclude that OPM refuses or does not intend to act”).
In the “unusual and compelling circumstances” present
in Okello, the Board found that OPM had “effectively abdi-
cated its role of adjudicating” the FERS claim.
120 M.S.P.R. at 503–04. Unlike Okello, however—in which
the appellant had filed a claim and “diligently sought a fi-
nal decision from OPM” over a six-year period, id. at 503—
Mr. Shu has not filed a FERS claim with OPM at all. We
therefore agree that Mr. Shu has not met his burden of
demonstrating that the Board has jurisdiction over his ap-
peal, as OPM has not issued a final decision and Mr. Shu
has not shown that OPM has “refused or improperly failed
to issue a final decision.” See id. at 502.
Mr. Shu also argues that the assigned administrative
law judge was biased against him, but he has not satisfied
the high standard for showing bias based on conduct in the
course of a proceeding, see Bieber v. Dep’t of the Army, 287
F.3d 1358, 1362 (Fed. Cir. 2002), nor do we find prior rul-
ings adverse to Mr. Shu sufficient to demonstrate judicial
bias.
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6 SHU v. MSPB
Mr. Shu, of course, remains free to file an application
for FERS retirement with OPM, and if discontented with
OPM’s decision, he may seek review with the Board and
then in this court.
AFFIRMED
COSTS
No costs.