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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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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.