       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               WENDY W. GHANNAM,
                   Petitioner,

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
             ______________________

                      2013-3050
                ______________________

    Petition for review of Merit System Protection Board
in No. DC0841120179-I-1
                  ______________________

                Decided: June 10, 2013
                ______________________

   WENDY W. GHANNAM, of Chantilly, Virginia, pro se.

    NICOLE DECRESCENZO, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were BRYAN G.
POLISUK, General Counsel and KEISHA DAWN BELL, Depu-
ty General Counsel.
                ______________________
2                           WENDY GHANNAM     v. MSPB



      Before NEWMAN, O’MALLEY, and WALLACH, Circuit
                       Judges.
PER CURIAM.
     Wendy W. Ghannam (“Ghannam”) appeals from a fi-
nal decision of the Merit Systems Protection Board
(“Board”), dismissing her challenge to the Office of Per-
sonnel Management’s (“OPM”) calculation of her retire-
ment annuity. The Board dismissed her appeal for lack of
jurisdiction. Ghannam v. Office of Pers. Mgmt., No. DC-
0841-12-0179-I-1, 2012 WL 4123394 (M.S.P.B. Sept. 19,
2012). Because OPM has not acted on a motion for recon-
sideration, the Board’s dismissal for lack of jurisdiction is
affirmed.
                       BACKGROUND
    Ghannam was employed by the U.S. Agency for In-
ternational Development (“USAID”) from 1987 to 1996.
After being injured on the job, Ghannam was downgraded
from a GS-07 status employee to a GS-03 status and was
subsequently terminated as part of a reduction in force.
Calculation of her retirement annuity thus took into
consideration that Ghannam was at a GS-03 status as of
her retirement in 1996. In 2000, the downgrading of
Ghannam’s status was deemed discriminatory by the
Equal Employment Opportunity Commission (“EEOC”),
which ordered her re-instatement to a GS-07 position as
well as back-pay. USAID satisfied its back-pay obligation
for the period of October 1, 1998, through December 14,
2001, but failed to do so for the period of December 12,
1995, through October 1, 1998. In 2004, the EEOC or-
dered USAID to award Ghannam the remaining back-pay
and notify OPM of any remedial actions or changes in
salary rates. Ghannam contends USAID never reported
to OPM as required by the EEOC order. As a result,
Ghannam asserts that her retirement annuity was never
properly calculated to reflect her correct GS-07 status.
 WENDY GHANNAM    v. MSPB                                 3



    In December 2011, Ghannam filed an appeal before a
Board administrative judge contesting OPM’s calculation
of her retirement annuity. OPM responded to the appeal
by submitting a letter to the administrative judge seeking
to have the appeal dismissed. OPM stated:
   [W]e did not locate a final decision issued to the
   appellant regarding the issue raised in her appeal
   to the MSPB nor has the appellant provided evi-
   dence of one. . . . Therefore, we move that this ap-
   peal be dismissed for lack of jurisdiction. Once
   the appeal is dismissed, we will issue an initial
   decision on the issue with right of reconsideration,
   if warranted.
     The administrative judge informed Ghannam that the
Board generally only has jurisdiction when OPM has
issued a reconsideration decision and issued an Acknowl-
edgement Order providing her the opportunity to file a
copy of such decision with the Board. But Ghannam
failed to provide any documentation of an OPM reconsid-
eration decision. Accordingly, in February 2012, the
administrative judge dismissed the appeal for lack of
jurisdiction, noting that Ghannam retained the right to
appeal future OPM final decisions concerning her retire-
ment benefits, should they be issued.
    In March 2012, Ghannam timely appealed the admin-
istrative judge’s jurisdictional determination to the Board.
Since its review of the record showed that OPM had
issued no reconsideration decision, the Board denied
Ghannam’s petition for review and affirmed the initial
decision by the administrative judge, adopting it as the
Board’s final decision. See 5 C.F.R. § 1201.113(b).
    Ghannam now appeals the Board’s final decision to
this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                       DISCUSSION
4                            WENDY GHANNAM     v. MSPB



    Our standard of review in Board decisions is limited
by statute. See 5 U.S.C. § 7703(c). We must affirm the
Board’s decision unless it is (1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
the law; (2) obtained without procedures required by law,
rule, or regulation having been followed; or (3) unsupport-
ed by substantial evidence.” Id. Whether the Board has
jurisdiction to adjudicate a case on appeal is a question of
law, which we review de novo. See Forest v. Merit Sys.
Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). Although we
may review the Board’s conclusion that it lacks jurisdic-
tion, we are bound by the administrative judge’s factual
determinations “unless those findings are not supported
by substantial evidence.” Bolton v. Merit Sys. Prot. Bd.,
154 F.3d 1313, 1316 (Fed. Cir. 1998).
    “[A]n administrative action or order affecting the
rights or interests of an individual[’s retirement] . . . may
be appealed to the Merit Systems Protection Board under
procedures prescribed by the Board.”             5 U.S.C.A.
§ 8347(d)(1). OPM’s regulations require that, for a deci-
sion to be appealable by the Board, it must be a “final
decision.” 5 C.F.R. § 831.110.
    OPM’s regulations describe two types of appealable
decisions:
    (1) After reconsideration, the Associate Director’s
    representative shall issue a final decision which
    shall be in writing, shall fully set forth the find-
    ings and conclusions of the reconsideration, and
    shall contain notice of the right to request an ap-
    peal [to the MSPB] provided in § 831.110. Copies
    of the final decision shall be sent to the individual,
    to any competing claimants and, where applicable,
    to the agency.
    (2) OPM may issue a final decision providing the
    opportunity to appeal under § 831.110 rather than
    an opportunity to request reconsideration under
 WENDY GHANNAM    v. MSPB                                 5



    paragraph (c) of this section. Such a decision
    must be in writing and state the right to appeal
    under § 831.110.
5 C.F.R. § 831.109(f). Absent an initial decision rendered
by OPM in writing and stating the right to appeal to the
Board, an appellant must obtain a reconsideration deci-
sion in order to appeal to the Board. See 5 C.F.R.
§ 831.109(c)(2009); Wiley v. Merit Sys. Prot. Bd., 406 F.
App’x. 488 (Fed. Cir. 2011). Exceptions to the final deci-
sion requirement exist where OPM improperly fails to
inform the appellant of the right to seek reconsideration
of a retirement application decision, see Richards v. Office
of Pers. Mgmt., 29 M.S.P.R. 310, 312 (1985), or improperly
denies an opportunity for reconsideration, see Phillips v.
Veterans Admin., 21 M.S.P.R. 409, 412 (1984).
    There is no evidence to suggest that Ghannam sought
reconsideration before appealing to the Board. Ghannam
also failed to respond to the administrative judge’s
Acknowledgement Order seeking a copy of OPM’s final
decision. Thus, Ghannam, who has the burden of estab-
lishing that the Board has jurisdiction over her appeal by
a preponderance of evidence, see 5 C.F.R. § 1201.56(a)(2),
has not shown that OPM issued a final decision or im-
properly denied her an opportunity for reconsideration.
     Ghannam does not allege that the Board erred in find-
ing that OPM had issued no final decision. Ghannam’s
only argument on appeal is that the Board incorrectly
considered all relevant facts of the case, including work
records and circumstances following the EEOC ruling.
These facts have no bearing on the Board’s jurisdiction.
Ghannam’s appeal fails to demonstrate that the Board’s
dismissal for lack of jurisdiction was arbitrary, contrary to
procedures required by law, or unsupported by substan-
tial evidence.
    Accordingly, we must affirm the Board’s final decision
dismissing the appeal for lack of jurisdiction.
6      WENDY GHANNAM   v. MSPB



    AFFIRMED
