                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     QIUHUA Y. RIGGS,                                DOCKET NUMBER
                   Appellant,                        SF-0831-16-0507-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 29, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Qiuhua Y. Riggs, West Covina, California, pro se.

           Kristine Prentice, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed for lack of jurisdiction her appeal concerning her eligibility for
     survivor annuity benefits under the Civil Service Retirement System (CSRS).
     Generally, we grant petitions such as this one only when: the initial decision


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed.   See title 5 of the Code of Federal Regulations, section 1201.115
     (5 C.F.R. § 1201.115).    After fully considering the filings in this appeal, we
     conclude that the petitioner has not established any basis under section 1201.115
     for granting the petition for review. Therefore, we DENY the petition for review
     and AFFIRM the initial decision, which is now the Board’s final decision.
     5 C.F.R. § 1201.113(b).
¶2        The appellant is the surviving spouse of an individual who had performed
     Federal service covered under the CSRS.         Initial Appeal File (IAF), Tab 2
     at 36‑37, 45-46.    The Office of Personnel Management (OPM) informed the
     appellant that she could apply for death benefits but did not indicate that she was
     eligible for survivor annuity benefits. Id. at 28. On March 4, 2016, the appellant
     signed and completed an application for death benefits based on her spouse’s
     Federal service. Id. at 29-32. In a final decision dated March 18, 2016, OPM
     determined that she was not entitled to a lump‑sum death benefit. Id. at 7‑8.
¶3        The appellant filed an appeal of OPM’s final decision that denied her
     application for a lump-sum death benefit. 2       IAF, Tab 1 at 1-7.      After the
     administrative judge became aware that the appellant was also seeking survivor
     annuity benefits and OPM had not issued a final decision regarding this type of



     2
      The instant appeal was initially docketed as part of her appeal concerning lump-sum
     death benefits under MSPB Docket No. SF-0831-16-0421-I-1. IAF, Tab 4 at 1.
                                                                                        3

     benefit, she decided to docket separately this appeal of her claim to survivor
     annuity benefits. IAF, Tab 3 at 1, Tab 4 at 1.
¶4        OPM filed a motion to dismiss this appeal for lack of jurisdiction. IAF,
     Tab 2 at 4. OPM alleged that it had not issued an initial or a final decision on
     her claim to survivor annuity benefits, but that it intended to issue a decision
     after her separate appeal concerning lump-sum death benefits was fully
     adjudicated. Id.
¶5        In a show cause order, the administrative judge informed the appellant of
     her burden of establishing jurisdiction over the appeal and that the Board may
     not have jurisdiction over this appeal because OPM had not issued a final
     decision on her eligibility for survivor annuity benefits. IAF, Tab 4 at 1-2. The
     administrative judge ordered her to file evidence and argument on the
     jurisdictional issue. Id. at 2. The appellant did not respond.
¶6        Without holding a hearing, the administrative judge issued an initial
     decision dismissing the appeal for lack of jurisdiction.         IAF, Tab 8, Initial
     Decision (ID) at 1, 3. She found that the Board lacked jurisdiction over the
     appeal because OPM had not issued an initial or a final decision on the
     appellant’s eligibility for survivor annuity benefits. ID at 3. She further found
     no evidence that OPM did not intend to issue an initial or reconsideration
     decision on the matter. Id.
¶7        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. OPM has filed a response. PFR File, Tab 4.
¶8        The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.         Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The appellant has the burden
     of proving the Board’s jurisdiction by a preponderance of the evidence. 3

     3
      A preponderance of the evidence is the degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        4

      5 C.F.R. § 1201.56(b)(2)(i)(A).         The Board has jurisdiction over OPM
      determinations affecting an appellant’s rights or interests under CSRS only after
      OPM has issued a final decision. Morin v. Office of Personnel Management,
      107 M.S.P.R.     534,   ¶8    (2007),    aff’d   per   curiam,   287 F. App’x   864
      (Fed. Cir. 2008); see 5 U.S.C. § 8347(d); 5 C.F.R. § 831.110.         However, the
      Board will take jurisdiction over an appeal concerning a retirement matter in
      which OPM has refused or improperly failed to issue a final decision. Okello v.
      Office of Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014).
¶9         Here, OPM asserted that it had not issued an initial or a final decision on
      the appellant’s claim to survivor annuity benefits, but that it intended to issue a
      decision on the matter after the adjudication of her separate appeal concerning
      lump‑sum death benefits was finalized. IAF, Tab 2 at 4. The initial decision in
      the appellant’s separate appeal concerning lump-sum death benefits became final
      on July 22, 2016, when she did not file a petition for review by the finality date.
      Riggs v. Office of Personnel Management, MSPB Docket No. SF-0831-16-0421-
      I-1, Initial Appeal File, Tab 17, Initial Decision at 4 (June 17, 2016). As the
      administrative judge properly found here, the Board lacks jurisdiction over the
      instant appeal because OPM has not issued an initial or a final decision
      determining her eligibility for survivor annuity benefits. ID at 3.
¶10        In her petition for review, the appellant does not dispute the administrative
      judge’s finding that OPM has not issued an initial or a final decision on her
      survivor annuity benefits claim. PFR File, Tab 1. Although she asserts that she
      has not yet received a decision from OPM on her entitlement to survivor annuity
      benefits after her separate appeal regarding lump-sum death benefits was
      finalized, she has not challenged the accuracy of OPM’s stated intention to issue
      a decision on the matter, or alleged that OPM has refused or improperly failed to
      issue a decision. Id. at 9.
¶11        Further, we find that the appellant’s arguments on the merits of the appeal
      are not relevant to the dispositive jurisdictional issue and, thus, do not provide a
                                                                                         5

      reason to disturb the initial decision. Id. at 1-6; see, e.g., Sapla v. Department of
      the Navy, 118 M.S.P.R. 551, ¶ 7 (2012) (finding that the appellant’s arguments
      on the merits of her appeal were not relevant to the jurisdictional question).
¶12        Accordingly, we find that the administrative judge properly dismissed this
      appeal for lack of jurisdiction.      If the appellant is dissatisfied with any
      subsequent OPM decision regarding her claim to survivor annuity benefits, she
      may request that OPM reconsider the decision and, if she is still dissatisfied, she
      may appeal OPM’s final decision to the Board. See 5 U.S.C. § 8347(d); 5 C.F.R.
      § 831.110. Any future appeal must be filed within the time limits set forth in the
      Board’s regulations. See 5 C.F.R. § 1201.22.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012).    You may read this law as well as other sections of the U.S.
                                                                                    6

Code, at our website, http://www.mspb.gov/appeals/uscode.htm.            Additional
information is available at the court’s website, www.cafc.uscourts.gov.            Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
