                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ELENA A. STILLWELL,                             DOCKET NUMBER
                   Appellant,                        SF-0841-15-0135-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 5, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Rodelio V. Mendoza, Calabanga, Camarines Sur, Philippines, for the
             appellant.

           Christopher H. Ziebarth, 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 entitlement to death
     benefits under the Civil Service Retirement System (CSRS). Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and based on the following
     points and authorities, 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 filed an appeal stating that she was seeking verification of
     her entitlement to death benefits based on her husband’s federal service. Initial
     Appeal File (IAF), Tab 1 at 4.        The administrative judge issued an order
     informing the appellant of the applicable jurisdictional criteria and her burden of
     proving that the Board has jurisdiction over her appeal. IAF, Tab 2 at 2. The
     administrative judge further informed the appellant that the Board may not have
     jurisdiction over her appeal and ordered her to submit proof that the Office of
     Personnel Management (OPM) issued a final decision on her request for benefits.
     Id. The appellant responded to the order by arguing that the Board has found
     jurisdiction over appeals concerning retirement benefits when OPM has failed to
     issue a final appealable decision and engaged in substantial delays. IAF, Tab 3 at
     4. The appellant also submitted various documents, none of which included a
     final decision issued by OPM. 2 IAF, Tab 9 at 4-9, Tabs 10-13.

     2
      The documents submitted by the appellant included: her June 30, 2014 application for
     death benefits under CSRS; her email correspondence from OPM stating that it was
     unable to find records showing any CSRS service under her husband’s social security
                                                                                          3

¶3          OPM responded by filing a motion to dismiss the appeal arguing, in
     pertinent part, that “[t]he Board’s jurisdiction is limited to matters addressed by
     OPM in a final decision,” and there is no evidence that OPM issued a final
     decision on the matter raised by the appellant in her appeal. IAF, Tab 7 at 4.
     OPM further stated that it had no record of an application for benefits filed by the
     appellant. Id. In opposition to the agency’s motion, the appellant argued that
     OPM received her June 30, 2014 application for benefits and she asked the Board
     to determine her eligibility for death benefits. IAF, Tab 8 at 5.
¶4          The administrative judge issued an order setting the date for closing the
     record, noting that OPM had not even issued an initial decision concerning the
     appellant’s application for death benefits and stating that she would dismiss the
     appeal without evidence that OPM issued a reconsideration decision. IAF, Tab
     14 at 1-2. Before the record closed on appeal, the appellant submitted argument
     that the Board had jurisdiction to consider her appeal because 7 months had
     passed since she filed her June 30, 2014 application for death benefits and OPM
     had failed to issue an initial or final decision. IAF, Tab 15 at 4. The appellant
     also asked the Board to remand the appeal to OPM for a decision on the merits of
     her claim for death benefits. Id.
¶5          The administrative judge issued an initial decision dismissing the appeal for
     lack   of   jurisdiction   because   OPM    had   not   yet   issued   an   appealable
     reconsideration or final decision. IAF, Tab 17, Initial Decision (ID) at 5. The
     administrative judge found no compelling circumstances warranting an exercise
     of jurisdiction by the Board in the absence of a final decision from OPM on the


     number; and her November 16, 2014 request that OPM make a final appealable decision
     on her application. IAF, Tab 9 at 4-9, Tabs 10-11, 13. The appellant also provided
     additional documents including, but not limited to, a copy of her marriage certificate,
     Form DD-214 documenting her late husband’s military service, a report from the U.S.
     Department of State documenting her husband’s death abroad, copies of benefits-related
     laws, and her letter to the Department of Veterans’ Affairs discussing a claim for an
     asbestos-related injury to her late husband. IAF, Tab 9 at 13, Tab 11, Tab 12 at 4-6.
                                                                                           4

     appellant’s application for death benefits. ID at 4. The administrative judge also
     denied the appellant’s request to remand the appeal to OPM. Id.
¶6         The appellant filed a petition for review arguing that the Board has
     jurisdiction over decisions “affecting the rights or interests of an individual under
     the Federal retirement laws,” even in the absence of a final reconsideration
     decision from OPM, if OPM refuses or improperly fails to issue a final decision.
     Petition for Review (PFR) File, Tab 1 at 5. The appellant also argues the merits
     of her appeal and asks the Board to remand her appeal to OPM for a final decision
     on the merits of her application for benefits. 3 Id. at 4, 7. In response, OPM asks
     the Board to deny the appellant’s petition for review for failure to meet the
     Board’s review criteria. PFR File, Tab 12 at 4. OPM also asserts that there is no
     evidence that her deceased spouse “was ever employed as a Federal civilian
     employee with coverage under the retirement act; nor has the appellant supplied
     such evidence.” Id.
¶7         The appellant has the burden of proving jurisdiction over her appeal. See
     Reid v. Office of Personnel Management, 120 M.S.P.R. 83, ¶ 6 (2013).                The
     Board’s jurisdiction over CSRS retirement cases is granted by 5 U.S.C.
     § 8347(d)(1). The Board generally has jurisdiction over an OPM determination
     on the merits of a matter affecting the rights or interests of an individual under
     CSRS only after OPM has issued a final decision.             5 U.S.C. § 8347(d)(1);
     5 C.F.R. § 831.110. The Board generally lacks jurisdiction to hear an appeal of a
     retirement matter before OPM has issued a final decision on the matter and,


     3
        The appellant also filed several motions on review, all of which we deny. For
     example, she filed a motion for acknowledgment, and the Clerk of the Board
     subsequently issued an acknowledgment letter. PFR File, Tabs 4, 7. She filed a motion
     for OPM to respond to her PFR, and OPM responded. PFR File, Tabs 5, 12. She filed a
     motion expressing her interest in settling her appeal and discussions were undertaken
     but there was no agreement. PFR File, Tabs 3, 8. She also filed a motion for leave to
     file an additional pleading; however, she failed to clearly describe the nature and need
     for the additional pleading as required by 5 C.F.R. § 1201.114(a)(5). PFR File, Tab 9,
     Tab 10 at 4-5; see 5 C.F.R. § 1201.114(a)(5).
                                                                                           5

     accordingly, will dismiss the appeal.            Ramirez v. Office of Personnel
     Management, 114 M.S.P.R. 511, ¶ 7 (2010).            The Board has recognized an
     exception to that general rule, however, when OPM has failed to render a
     decision.   Id.   The Board will take jurisdiction, even absent an OPM final
     decision, when the appellant has repeatedly requested such a decision and the
     evidence indicates that OPM does not intend to issue a final decision. Id.
¶8          This is not such a case.     It is undisputed that OPM has not issued an
     appealable decision on the appellant’s request for death benefits. Moreover, the
     appellant offered no evidence that she repeatedly requested a final decision from
     OPM and the evidence does not indicate that OPM does not intend to issue a final
     decision. 4 Accordingly, we find that the administrative judge properly dismissed
     this appeal for lack of jurisdiction. Because the Board has no jurisdiction over
     this appeal, the Board cannot consider the remaining arguments raised by the
     appellant concerning the merits of her application for death benefits and motion
     for imposing sanctions on OPM. 5 We therefore deny the petition for review and
     the appellant’s request to remand the appeal to OPM.




     4
       The record reflects that the appellant sent an email to OPM on November 16, 2014,
     asking for a final appealable decision on her application for death benefits. IAF, Tab 9
     at 10. On November 18, 2014, OPM’s Senior Legal Administrative Specialist for
     Survivor Processing responded to the appellant’s request, stating in pertinent part:
            I apologize for the delay in responding to your application for death
            benefits for [your late husband]. We are currently searching our files for
            his records of CSRS service. Once the search is completed we will be
            able to respond to your application. Thank you for your continued
            patience in this process.
     Id. at 9.
     5
       The appellant filed a motion to impose sanctions against OPM for reasons that are
     unclear but appear to include an alleged failure by OPM to respond to her proposed
     settlement agreement and for concealing “the truth regarding the rights of [a] former
     federal employee.” PFR File, Tab 6 at 4, Tab 10 at 4.
                                                                                  6

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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 United States 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 United
States   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 your appeal to the
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
                                                                                  7

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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
