Filed: Oct. 24, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEBRA VINSON, DOCKET NUMBER Appellant, CH-0752-15-0593-I-1 v. UNITED STATES POSTAL SERVICE, DATE: October 24, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant. James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, 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,
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEBRA VINSON, DOCKET NUMBER Appellant, CH-0752-15-0593-I-1 v. UNITED STATES POSTAL SERVICE, DATE: October 24, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant. James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, 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, ..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBRA VINSON, DOCKET NUMBER
Appellant, CH-0752-15-0593-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 24, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant.
James E. Campion, Jr., Esquire, Philadelphia, Pennsylvania, 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 of an alleged involuntary retirement.
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 regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 following facts are undisputed. The appellant began working for the
U.S. Postal Service (agency) in 1975. Initial Appeal File (IAF), Tab 7 at 42. She
became a career employee in 1988 and was enrolled, erroneously, in the Federal
Employees’ Retirement System (FERS). Id. at 16. In 1997, following
notification that she should have been placed in the Civil Service Retirement
System (CSRS) Offset, the appellant elected to be covered under FERS. Id.
at 17-19. In 2006, the Office of Personnel Management (OPM) allowed the
appellant an additional opportunity to choose between the CSRS Offset and the
FERS retirement plans. Id. at 21-22. OPM’s election letter included retirement
estimates for FERS and CSRS Offset. Id. at 24-31. The appellant elected FERS
coverage on October 18, 2006. Id. at 32.
¶3 On June 27, 2008, the agency sent the appellant an annuity estimate
indicating that if she were to retire with 30 years and 9 months of service on
December 1, 2009, she would receive a monthly benefit of $1,677, or $1,509 if
she chose a survivor benefit. Id. at 34-37. The appellant retired on June 30,
2009, with 34 years and 1 month of service, and she selected a reduced FERS
annuity for maximum survivor benefit for her spouse. Id. at 38, 43-44; IAF,
Tab 8 at 66. After the appellant retired, OPM determined the rate of the
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appellant’s monthly annuity under FERS was actually $1,821. IAF, Tab 8 at 75.
The appellant challenged this calculation, and OPM issued a final reconsideration
decision finding that OPM properly calculated her annuity based on her
irrevocable election of FERS coverage and her years of service. Id. at 64-65.
¶4 The appellant filed a Board appeal challenging OPM’s reconsideration
decision, which the Board dismissed as untimely. See Vinson v. Office of
Personnel Management, MSPB Docket No. CH-0841-15-0446-I-1. During that
appeal, she alleged that she retired due to misleading information that she
received from the agency. IAF, Tab 1 at 1-2. The Board subsequently docketed
the instant involuntary retirement appeal against the agency. Id.
¶5 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal for lack of Board jurisdiction. IAF, Tab 15, Initial
Decision (ID) at 1. The administrative judge found that the Board has no
jurisdiction over the appellant’s appeal of her alleged involuntary retirement
because she failed to make a nonfrivolous allegation that her retirement was the
result of agency misinformation. ID at 7.
¶6 The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. The appellant argues on review that she did, in fact,
raise a nonfrivolous allegation that her retirement was rendered involuntary based
on misinformation provided by the agency. Id. at 11-77. The agency responded
in opposition to her petition for review, and the appellant replied. PFR File,
Tabs 3-4.
¶7 A retirement is presumed to be a voluntary act and, therefore, beyond the
Board’s jurisdiction. See Heining v. General Services Administration,
68 M.S.P.R. 513, 519 (1995); see also 5 C.F.R. § 752.401(b)(9). A retirement is
involuntary if it is obtained by agency misinformation or deception. Covington v.
Department of Health & Human Services, 750 F.2d 937, 942 (Fed. Cir. 1984).
The misleading information can be negligently or even innocently provided; if the
employee materially relies on such misinformation to her detriment, based on an
4
objective evaluation of the circumstances, her retirement is considered
involuntary. Id. A decision based on misinformation or lack of information
cannot be binding as a matter of fundamental fairness and due process. Id.
at 943. Misleading statements upon which an employee reasonably relied to her
detriment are sufficient to render an action involuntary. See Moriarty v. Office of
Personnel Management, 47 M.S.P.R. 280, 287 (1991), aff’d, 989 F.2d 1202 (Fed.
Cir. 1993) (Table).
¶8 If the appellant makes nonfrivolous allegations of fact that, if proven, could
establish jurisdiction over her involuntary retirement appeal, then she is entitled
to a hearing on jurisdiction. Garcia v. Department of Homeland Security,
437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc). A nonfrivolous allegation of
Board jurisdiction is an allegation of fact which, if proven, could establish a
prima facie case that the Board has jurisdiction over the matter at issue.
Deines v. Department of Energy, 98 M.S.P.R. 389, ¶ 11 (2005).
¶9 On review, the appellant reasserts her allegation that her retirement was
involuntary because she relied on material misinformation provided by the agency
in an August 22, 2008 document stating an estimated monthly CSRS retirement
annuity amount of $3,259, which is more than the $1,821 monthly FERS annuity
ultimately determined by OPM. PFR File, Tab 1 at 7, 14-15. The appellant
alleges that the agency sent “numerous documents with mistakes in the past,” and
that she was not surprised to find errors in the August 22, 2008 annuity estimate.
PFR File, Tab 4 at 5. The appellant also alleges that she informed the agency that
“a significant amount of the identifying information” on the August 2008 annuity
estimate was incorrect and that she requested corrected documentation. Id. The
appellant further alleges that she received an October 2008 annuity estimate and
that after the agency asked her to disregard the October estimate, she assumed
that the August 22, 2008 estimate was correct. Id.
¶10 Assuming these allegations to be true, we find that the appellant’s alleged
reliance on the August 22, 2008 annuity estimate was not reasonable, considering
5
that the personally identifiable information on the face of that document did not
apply to her. 2 IAF, Tab 8 at 174. The administrative judge properly found that
the appellant did not allege sufficient facts to show that her reliance on the
August 2008 annuity estimate was reasonable, or that the information therein was
material, because the annuity estimate did not display the appellant’s name or
otherwise suggest that document was created with reference to her. ID at 4-5.
¶11 In reaching his decision, the administrative judge specifically noted that the
appellant acknowledged that the birth date, social security number, and retirement
eligibility date on the August 22, 2008 document did not match her personally
identifiable information. ID at 5; IAF, Tab 5 at 6. The administrative judge also
noted that the August 2008 document estimated an annuity for an individual
earning $60,053 and serving in an EAS-17 position not covered under FERS but
the appellant was a craft employee covered under FERS and her final salary when
she retired was $57,123. ID at 5; IAF, Tab 11 at 4; Tab 8 at 174. We agree with
the administrative judge that the appellant failed to allege sufficiently detailed
facts to support finding that an individual would be misled reasonably by the
August 22, 2008 annuity estimate that the appellant submitted into the record. ID
at 4-5. The appellant’s arguments on review present no reason to disturb
this finding.
¶12 On review, the appellant also reasserts her allegation that she received
misleading information from the agency on or about September 8, 2006,
estimating her monthly annuity under FERS as $2,350, based on 30 years and
11 months of service. PFR File, Tab 4 at 5; IAF, Tab 6 at 5. The administrative
2
“The term ‘personally identifiable information’ refers to information which can be
used to distinguish or trace an individual’s identity, such as their name, social security
number, biometric records, etc. alone, or when combined with other personal or
identifying information which is linked or linkable to a specific individual, such as date
and place of birth, mother’s maiden name, etc.” Office of Management and Budget
(OMB) Memorandum M-14-06, Safeguarding Against and Responding to the Breach of
Personally Identifiable Information, May 2007, available at
http://www.whitehouse.gov/omb/memoranda/fy2007/m07-16.pdf.
6
judge found that the appellant failed to provide documentation to support her
allegation and that she did not dispute receiving retirement information in
September stating that her FERS annuity would be $1,670, which is lower than
the $1,821 per month that OPM ultimately determined to be correct. ID at 5-6.
The agency made the same argument on review. PFR File, Tab 3 at 5.
¶13 We note that the agency file includes a copy of a September 13, 2006
document addressed to the appellant from OPM, with an attached October 17,
2006 monthly annuity estimate of $2,350 calculated under FERS based on
30 years and 11 months of service. 3 IAF, Tab 7 at 21, 24. However, this
evidence does not require a different result in this case because the appellant
alleged that she based her retirement decision entirely on the agency’s
August 2008 annuity estimate. PFR File, Tab 1 at 8; Tab 4 at 5; IAF, Tab 5 at 6,
11; Tab 6 at 5-6. We further find that the appellant’s remaining arguments on
review provide no basis for reversing the initial decision dismissing her appeal
for lack of jurisdiction.
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
3
To the extent that the administrative judge found otherwise, he erred in this regard.
PFR File, Tab 1 at 15; ID at 5-6. However, we find no reason to disturb the initial
decision because the administrative judge’s error does not affect the outcome of this
appeal. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
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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 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.
