Filed: Jul. 28, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FREDERICK JACOB ROLL, DOCKET NUMBER Appellant, AT-0752-14-0612-I-1 v. DEPARTMENT OF VETERANS DATE: July 28, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Frederick Jacob Roll, Fort White, Florida, pro se. Dana C. Heck, Esquire, St. Petersburg, Florida, 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 dismiss
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FREDERICK JACOB ROLL, DOCKET NUMBER Appellant, AT-0752-14-0612-I-1 v. DEPARTMENT OF VETERANS DATE: July 28, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Frederick Jacob Roll, Fort White, Florida, pro se. Dana C. Heck, Esquire, St. Petersburg, Florida, 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 dismisse..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK JACOB ROLL, DOCKET NUMBER
Appellant, AT-0752-14-0612-I-1
v.
DEPARTMENT OF VETERANS DATE: July 28, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Frederick Jacob Roll, Fort White, Florida, pro se.
Dana C. Heck, Esquire, St. Petersburg, Florida, 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 his involuntary retirement 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 retired from his position with the agency effective
January 28, 2012. Initial Appeal File (IAF), Tab 6, Subtab 4c. The Standard
Form 50 effecting the appellant’s retirement reflects that he was placed in the
Civil Service Retirement System (CSRS) Offset, a version of CSRS for
employees whose Federal service is subject to deductions for both CSRS and the
Old Age, Survivors and Disability Insurance program under the Social Security
Act, 42 U.S.C. § 401 et seq. See id.; see also 5 U.S.C. § 8349; Warren v.
Department of Transportation, 116 M.S.P.R. 554, ¶ 2 (2011) (explaining the
nature of CSRS Offset), aff’d, 493 F. App’x 105 (Fed. Cir. 2013). Prior to
retiring, the appellant received two CSRS benefit estimate reports from the
agency that projected his future retirement annuities. IAF, Tab 6, Subtabs 4d-4e.
The later CSRS benefit estimate report is dated 5 days prior to the effective date
of the appellant’s retirement, and it projected that his gross monthly annuity
would be $2,594.03. IAF, Tab 6, Subtab 4d.
¶3 Subsequent to retiring, however, the Office of Personnel Management
(OPM) informed the appellant that his gross monthly annuity would be offset by
an additional $215.00, which represented the monthly social security benefit he
3
would receive. IAF, Tab 1. The appellant objected to the offset and raised his
concerns with several government agencies and officials, and he ultimately filed
an appeal with the Board raising an involuntary retirement claim based on agency
misinformation. 2 Id. Following a hearing, the administrative judge dismissed the
appeal for lack of jurisdiction, finding that the appellant failed to establish that,
under the totality of the circumstances, he relied on agency misinformation to his
detriment. IAF, Tab 25, Initial Decision (ID). In reaching his decision, the
administrative judge conducted a detailed credibility assessment of each witness,
and based on these findings, he found that the agency provided the appellant with
both CSRS benefit estimate reports which, although omitting information about
his social security offset, emphasized that they were estimates and not intended to
represent actual retirement annuity amounts. ID at 6-7; see IAF, Tab 6,
Subtabs 4d-4e. The administrative judge thus found that the agency did not
provide the appellant misinformation upon which he detrimentally relied in
making his decision to retire. ID at 17.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. On review, he argues that, had he known his
retirement annuity would be subject to an offset, he would not have retired, and
he argues that an agency representative misrepresented to him that his retirement
annuity would not be subject to an offset. Id. at 3. The agency has filed a
response in opposition to the petition for review. PFR File, Tab 3.
¶5 It is well settled that retirements and resignations are presumed to be
voluntary actions and thus outside of the Board’s appellate jurisdiction. A forced
retirement or resignation, however, is tantamount to a removal that is appealable
to the Board. See Aldridge v. Department of Agriculture, 111 M.S.P.R. 670, ¶ 7
2
The appellant has a related individual right of action appeal pending with the Board on
petition for review. See Roll v. Department of Veterans Affairs, MSPB Docket No.
AT-1221-14-0613-W-1. Only the appellant’s involuntary retirement allegations will be
addressed herein.
4
(2009). An appellant must show by preponderant evidence that a retirement or
resignation was involuntary and thus within the Board’s jurisdiction. Id.; see
Shoaf v. Department of Agriculture, 260 F.3d 1336, 1341 (Fed. Cir. 2001). To
overcome the presumption of voluntariness which normally attaches to a
retirement or resignation, an appellant must show that his decision to retire or
resign was the result of agency misrepresentation, coercion, or duress. See
Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010). Where, as
here, the appellant claims that his decision to retire was the result of agency
misinformation, he must show: (1) that the agency made misleading statements;
and (2) that he reasonably relied on the misinformation to his detriment. Id. An
appellant, however, need not show that the agency intentionally misled him, and
an agency is required to provide accurate information to permit an employee to
make an informed, and thus voluntary, decision regarding his retirement or
resignation. Id.
¶6 We have reviewed the initial decision and agree with the administrative
judge that the appellant has failed to show that his retirement was involuntary
because of agency misinformation. First, to the extent the appellant challenges
the administrative judge’s credibility determinations, such determinations are
entitled to a high degree of deference, and we find no basis in the record to differ
with these detailed and thorough credibility assessments. See Hudlin v. Office of
Personnel Management, 119 M.S.P.R. 61, ¶ 15 (2012); Garrison v. Department of
the Navy, 88 M.S.P.R. 389, ¶ 5 (2001); ID at 11-17.
¶7 We also agree with the administrative judge that the appellant has failed to
establish that he reasonably relied on agency misinformation to his detriment in
making his decision to retire. The appellant has failed to establish that, under the
totality of the circumstances, a reasonable person would have relied on a
projected monthly retirement annuity where that projection is presented on a
report entitled “CSRS Benefit Estimate Report,” which contains an express
disclaimer noting that it is not a final calculation and that OPM has the final
5
authority to determine an employee’s retirement annuity. See IAF, Tab 6,
Subtab 4d; ID at 6-7. Additionally, we find no evidence in the record that the
agency knew that the appellant was operating under a misapprehension based
upon the agency’s omission of information that would have required the agency
to affirmatively correct his misunderstanding. See Johnson v. U.S. Postal
Service, 66 M.S.P.R. 620, 628 (1995).
¶8 Upon considering the appellant’s arguments on review, we further find that
his primary focus is on the propriety of the social security offset itself. See PFR
File, Tab 1 at 3-6. The offset challenged by the appellant, however, is mandated
by statute. See 5 U.S.C. § 8349. The appellant’s retirement annuity, therefore,
would have been subject to a social security offset regardless of when he retired,
and the amount he ultimately received would have been the same under either
CSRS or CSRS Offset. See generally id.; 5 C.F.R. § 831 Subpart J; see also
Wible v. Department of the Army, 120 M.S.P.R. 333, ¶ 6 (2013) (explaining CSRS
and CSRS Offset formulas). We therefore find this appeal distinguishable from
those instances where an employee demonstrates that he decided to retire based
on an erroneous retirement estimate that had a demonstrable and detrimental
financial impact to the employee which would not have occurred in the absence of
the misinformation. See Salazar, 115 M.S.P.R. 296, ¶¶ 10-11 & n.2. In such
cases, an employee can clearly demonstrate how his decision to retire based on
misinformation had a negative impact on his financial interests. Id. (explaining
that the appellant lost 7 years’ creditable service toward his retirement based on
agency misinformation). Here, by contrast, because the appellant’s retirement
annuity would have been offset regardless of when he retired, we conclude that he
has not demonstrated any detrimental reliance on misinformation which resulted
in a financial impact that would not have resulted, had the offset amount been
included in the benefit estimate report. See id.; cf. Hunter v. Office of Personnel
Management, 109 M.S.P.R. 514, ¶ 13 (2008) (finding that detrimental reliance
was established where an employee retired early and lost 2 years of creditable
6
service), aff’d, No. 2008-3354, 2009 WL 174169 (Fed. Cir. Jan. 27, 2009);
Stanlonis v. U.S. Postal Service, 71 M.S.P.R. 410, 417 (1996) (finding no
detrimental reliance on information within an agency’s reorganization
memorandum), aff’d, 113 F.3d 1255 (Fed. Cir. 1997) (Table).
¶9 The administrative judge’s jurisdictional dismissal of the appellant’s
involuntary retirement appeal based upon agency misinformation is accordingly
affirmed.
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
7
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
United States 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
