                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KELLY L. COCKERHAM-POLK,                        DOCKET NUMBER
                   Appellant,                        CH-0831-16-0332-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: October 6, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Kelly L. Cockerham-Polk, Des Moines, Iowa, pro se.

           Sarah Murray, 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 her appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant filed an appeal on April 5, 2016, in which she asserted that
     she wants the money that was awarded to her in her divorce decree from her
     former husband.     Initial Appeal File (IAF), Tab 1.      The appellant included
     documentation showing she had filed a request with the Office of Personnel
     Management (OPM) requesting these funds, and that OPM issued an initial
     decision dated March 2, 2016, which denied her claim for a monthly survivor
     annuity under the Civil Service Retirement System. Id. OPM’s initial decision
     specifically stated as follows: “This represents the initial decision of [OPM]. If
     you wish to dispute our findings, you may request reconsideration.” IAF, Tab 1.
¶3        Because it appeared that the Board may not have jurisdiction over this
     appeal, the administrative judge issued an acknowledgment order on April 14,
     2016, which ordered the appellant to file evidence and argument to prove that the
     action is within the Board’s jurisdiction.   IAF, Tab 2.    The appellant did not
     respond. OPM filed a response stating that it had not yet issued a reconsideration
     decision in this matter and thus requested that the appeal be dismissed for lack of
     jurisdiction. IAF, Tab 4. Based on OPM’s response, the administrative judge
                                                                                         3

     issued a show cause order dated May 4, 2016, which again ordered the appellant
     to show that OPM has issued a final decision in this matter. IAF, Tab 5. The
     appellant did not respond. Because there is no evidence that OPM has issued a
     final decision in this matter, the administrative judge issued a decision that
     dismissed the appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID).
¶4        Generally, the Board has jurisdiction over OPM determinations affecting an
     appellant’s rights or interests under the retirement system only after OPM has
     issued    a   final    decision.       McNeese      v.    Office    of     Personnel
     Management, 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
     (Table); 5 C.F.R. § 841.308. The Board, however, will take jurisdiction over a
     retirement-related appeal when 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); McNeese, 61 M.S.P.R. at 74. In such a case, the Board will consider
     the totality of the circumstances to find that OPM’s failure to act on the matter
     itself constitutes an appealable administrative action affecting the appellant’s
     rights under the Federal Employees Retirement System. Okello, 120 M.S.P.R.
     498, ¶ 15; see Ramirez v. Office of Personnel Management, 114 M.S.P.R. 511, ¶ 7
     (2010) (finding that the Board will take jurisdiction, even absent an OPM
     reconsideration decision, when the appellant has repeatedly requested such a
     decision and the evidence indicates that OPM does not intend to issue one).
¶5        On review, the appellant asserts that she “is not asking for retirement
     benefits.” Petition for Review (PFR) File, Tab 1. Rather, she asserts that she is
     seeking the $15,000 lump sum that she was awarded in her divorce decree. Id.
     However, the appellant has not alleged that she requested reconsideration and that
     she received a final or reconsideration decision from OPM, or that she made
     repeated requests for such a decision. Nor has the appellant submitted evidence
     that OPM issued a final decision, either on review or below.             Accordingly,
     because there is no evidence that OPM has issued a final decision in this matter,
                                                                                   4

the appellant has shown no basis upon which to disturb the administrative judge’s
determination that the Board does not have jurisdiction over this appeal. Id.

                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. 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
                                                                                5

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.
