Kelly L. Cockerham-Polk v. Office of Personnel Management
Background
- Appellant Kelly L. Cockerham‑Polk appealed to the MSPB after OPM denied her claim for a monthly survivor annuity; she stated she was seeking a $15,000 lump‑sum awarded in a divorce decree.
- OPM issued an initial decision on March 2, 2016, denying the annuity claim and advising that reconsideration could be requested.
- The appellant filed the MSPB appeal on April 5, 2016; the administrative judge issued orders asking the appellant to show the Board had jurisdiction by producing evidence of a final OPM decision.
- The appellant did not respond to the AJ’s acknowledgment or show‑cause orders; OPM informed the Board that it had not issued a reconsideration (final) decision.
- The AJ dismissed the appeal for lack of jurisdiction because there was no final OPM decision and no evidence that OPM had refused or improperly failed to issue one.
- The Board denied the petition for review, affirmed the initial decision, and explained the appellant had not shown grounds to overturn the jurisdictional dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MSPB has jurisdiction over appellant’s claim absent a final OPM decision | Cockerham‑Polk: she seeks enforcement of a $15,000 divorce award and is not seeking retirement benefits; implied she can proceed now | OPM: it has not issued a reconsideration/final decision; therefore the Board lacks jurisdiction | Board: No jurisdiction—appellant produced no final OPM decision nor evidence OPM refused or improperly failed to issue one; dismissal affirmed |
Key Cases Cited
- McNeese v. Office of Personnel Management, 61 M.S.P.R. 70 (1994) (MSPB lacks jurisdiction over OPM retirement determinations until OPM issues a final decision)
- Okello v. Office of Personnel Management, 120 M.S.P.R. 498 (2014) (Board may take jurisdiction when OPM refuses or improperly fails to issue a final decision, under totality of circumstances)
- Ramirez v. Office of Personnel Management, 114 M.S.P.R. 511 (2010) (Board may assert jurisdiction absent an OPM reconsideration decision if appellant repeatedly requested one and evidence shows OPM does not intend to issue it)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (1991) (Federal Circuit will strictly enforce statutory filing deadlines for appeals)