The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSE MARIE EDWARDS, DOCKET NUMBER
Appellant, DC-3443-17-0636-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 29, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kevin L. Owen, Esquire, and Andrew J. Perlmutter, Esquire, Silver Spring,
Maryland, for the appellant.
Patricia Reddy-Parkinson, Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her constructive removal appeal for lack of jurisdiction without a
hearing. For the reasons discussed below, we GRANT the a ppellant’s petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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for review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a GS-12 Auditor for the agency. Initial Appeal File
(IAF), Tab 8 at 26. On or about May 8, 2016, the appellant submitted to the
agency’s Civilian Benefits Center an application for basic retirement under the
Civil Service Retirement System (CSRS), to be effective February 3, 2017. IAF,
Tab 2 at 2, 9, Tab 8 at 4, 27-30. Shortly before she filed her application, the
appellant had obtained an annuity estimate, using the agency’s Employee Benefits
Information System (EBIS). IAF, Tab 7 at 9-10, Tab 9 at 4. According to the
EBIS estimate, the appellant could expect to receive an unreduced monthly
annuity of approximately $3,640 upon her February 2017 retirement. IAF, Tab 9
at 4.
¶3 Immediately upon receiving the appellant’s application, the Civilian
Benefits Center assigned the appellant a retirement specialist to help her with the
process. IAF, Tab 2 at 9. According to the appellant, she discussed her plans
with the retirement specialist and informed her that she “was excited about the
monthly annuity amount of $3,640” as reflected in the EBIS estimate. IAF, Tab 7
at 10. The appellant states that the retirement specialist promised to forward her
a CSRS benefit estimate and service report to review. IAF, Tab 7 at 10.
¶4 Six months passed, and in November 2016, the appellant still had not
received the CSRS benefits estimate and service report. IAF, Tab 7 at 10 -11,
Tab 8 at 4, 15. The appellant alleges that, on November 18, 2016, she contacted
the retirement specialist again to inquire about the status of this information.
IAF, Tab 7 at 10. According to the appellant, the retirement specialist told her
that she would mail the estimate and report the following week. Id. The
appellant asserts that, after she failed to receive these documents and her
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retirement date drew nearer, she continued trying to contact the retirement
specialist, but her calls and emails went unanswered and unreturned. Id. at 10-11.
¶5 The appellant separated from service on February 3, 2017, as scheduled.
IAF, Tab 8 at 26. Approximately 1 month later, on March 1, 2017, the agency
finally mailed the appellant her CSRS benefit estimate and service report. Id.
at 15. These documents indicated that certain periods of part-time service and
service for which the appellant had received a refund of retirement contributions
would not be used in calculating her annuity; theref ore, the appellant’s gross
monthly annuity would be $1,991—not $3,640, as reflected in the EBIS estimate.
Id. at 17-24. The record indicates that, in the end, the Office of Personnel
Management (OPM) determined the appellant’s gross monthly annuity to be
$1,810.00. 2 IAF, Tab 2 at 48.
¶6 On June 30, 2017, the appellant filed a Board appeal, seeking reinstatement
to her Auditor position on the basis that her retirement was involuntary. IAF,
Tab 1. She requested a hearing. Id. The administrative judge notified the
appellant of the jurisdictional standard for a constructive removal appeal and the
need to make a nonfrivolous allegation of jurisdiction in order to receive her
requested hearing. IAF, Tab 2 at 2-5. After the close of the record, the
administrative judge issued an initial decision, dismissing the appeal for lack of
jurisdiction without a hearing. IAF, Tab 10, Initial Decision (ID). She found that
the agency did not provide the appellant any misinformation, and the appellant
failed to make a nonfrivolous allegation that she reasonably relied on the
inaccurate EBIS annuity estimate when she decided to retire. ID at 7 -9.
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The agency and OPM notified the appellant of her option to augment the annuity by
making a deposit or redeposit for parts of her non -credited service. IAF, Tab 2
at 39-40, 42, 46-48. OPM informed the appellant that she could increase her monthly
annuity to $3,350 by making a redeposit of $50,864, or to $3,306 by making a deposit
of $40,421. Id. at 48. However, the appellant determined that she could not come up
with that kind of money on short notice, so she declined to make a deposit. IAF,
Tab 10 at 15.
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¶7 The appellant has filed a petition for review, disputing the administrative
judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1. The
agency has responded to the petition for review, and the appellant has filed a
reply to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶8 To establish jurisdiction over a constructive removal appeal, an appellant
must prove by preponderant evidence that (1) she lacked a meaningful choice in
her resignation or retirement; and (2) it was the agency’s wrongful actions that
deprived her of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8
(2013). Once an appellant makes a nonfrivolous allegation of Board jurisdiction,
i.e., an allegation of fact that, if proven, would establish the Board’s jurisdiction,
she is entitled to a hearing on the jurisdictional issue. Garcia v. Department of
Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); Thomas v.
Department of the Navy, 123 M.S.P.R. 628, ¶ 11 (2016).
¶9 The Board has recognized numerous bases for constructive adverse actions,
including retirement decisions that are based on misinformation. Bean,
120 M.S.P.R. 397, ¶¶ 8-9. However, even when an employee retires based on
misinformation, her retirement will only amount to a constructive removal if her
reliance on that misinformation was the fault of the Government. Id., ¶ 9; see
Holser v. Department of the Army, 77 M.S.P.R. 92, 95 (1997).
¶10 In this case, the administrative judge found that the agency was not at fault
for the appellant’s misunderstanding of the amount of annuity that she would
receive upon retirement. ID at 5-9. The administrative judge found that EBIS
specifically informed the appellant that the annuity estimate that it generated
might be “significantly overstated” if the appellant had any part-time service or
unpaid deposits or redeposits (of which the appellant had both). ID at 6 -7; IAF,
Tab 8 at 12. She also observed that EBIS warned the appellant that she “should
not base a decision to retire on the data contained here.” ID at 7; IAF, Tab 8
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at 12. The administrative judge further found that, apart from this EBIS report,
which the appellant knew or should have known not to rely on in making a
retirement decision, the agency did not provide the appellant any misleadin g
information to induce her retirement. ID at 7-9. She concluded that the agency’s
failure to properly counsel the appellant about her retirement was not the same
thing as misinforming her about her retirement and that the appellant’s decision
to retire based on incomplete information did not amount to a constructive
removal. ID at 8-9.
¶11 On petition for review, the appellant argues that, even in the absence of
affirmative misinformation, lack of information may be sufficient to support a
claim of constructive removal. PFR File, Tab 1 at 6-9. We agree with the
appellant that this can be true under certain circumstances. The important
question is not whether the appellant’s theory of the case is based on
misinformation or lack of information; the important question is how the facts of
the case bear upon the ultimate jurisdictional issues of voluntariness and fault.
See Bean, 120 M.S.P.R. 397, ¶ 8.
¶12 In this case, we find that the appellant has made a nonfrivolous allegation of
jurisdiction under the theory that she based her retirement on inaccurate
information, which the agency had a duty to correct but did not. “An employee
action is considered to be involuntary if it results from the agency’s failure to
correct erroneous information that it has reason to know that the employee is
relying on.” Timberlake v. U.S. Postal Service, 76 M.S.P.R. 172, 175 (1997);
Drummond v. Department of Veterans Affairs, 58 M.S.P.R. 579, 583-84 (1993).
As set forth above, the appellant alleged that she informed the retirement
specialist in or around May 2016 that she was “excited” about the $3,640 monthly
annuity estimate that she obtained from EBIS. IAF, Tab 7 at 10. However, over
the next 9 months, the Civilian Benefits Center ignored the appellant’s multiple
requests for an independent annuity estimate and waited until after her separation
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from service to inform her that the EBIS estimate she was relying on was
overstated by more than 30%. IAF, Tab 8 at 4-5, 15-16.
¶13 Even considering the stock warning generated by EBIS that the annuity
estimate might be inaccurate and should not form the basis for a retirement
decision, it appears undisputed that the agency failed to give the appellant any
alternative. IAF, Tab 8 at 4-5, 15-16. This is so even though the agency was
required to give the appellant an accurate and timely annuity estimate both under
its own regulations and, if the appellant is to be believed, because the retirement
specialist knew that she was relying on an annuity benefits estimate that might
be incorrect. IAF, Tab 7 at 10; Department of Defense Instruction 1400.25,
vol. 830 § 3(a) (August 22, 2014),
https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_v
ol830.pdf. Furthermore, even though the appellant knew or should have known
that the EBIS estimate might be unreliable, it is not clear that a reasonable
person in her position might have expected that estimate to be off by more than
30%. Because the agency, despite multiple requests, failed in its obligation to
give the appellant an accurate annuity estimate at any time during the 9 months
leading up to her retirement, the appellant based her retirement decision on the
best (and only) information that she had at the time, which information
ultimately proved to be grossly inaccurate. Whether the appellant acted
reasonably in doing so, and hence whether her retirement amounted to a
constructive removal, are questions that can only be resolved after a hearing.
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ORDER
¶14 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.