                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 15

                             Docket No. PH-0752-14-0669-I-1

                                    John W. Morrison,
                                        Appellant,
                                             v.
                                Department of the Navy,
                                         Agency.
                                     February 23, 2015

           Kim Shugars, Las Vegas, Nevada, for the appellant.

           Barbara M. Dale, Esquire, Newport, Rhode Island, for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE the initial decision, and
     REMAND the appeal to the regional office for further adjudication in accordance
     with this Opinion and Order.

                                     BACKGROUND
¶2         Prior to his retirement, the appellant was employed by the Department of
     the Navy as a Firefighter. Initial Appeal File (IAF), Tab 1 at 1. On July 13,
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     2012, the appellant retired after becoming aware that the decision letter on his
     proposed removal would be issued that day. IAF, Tab 6 at 49. The decision to
     remove the appellant was based on a single charge: denied eligibility to access
     noncritical sensitive areas. IAF, Tab 14 at 31. The appellant was called into a
     meeting on July 13, 2012, for the purpose of delivering the decision letter. IAF,
     Tab 6 at 49. The appellant alleges that he was told during this meeting that the
     decision to remove him had been made and “[i]f you take the termination you will
     lose all your benefits and your retirement.” IAF, Tab 1 at 2. The appellant also
     alleges that he was not allowed to call anyone prior to making his decision to
     retire.     Id.   The appellant was told that his retirement had to be effective
     immediately. IAF, Tab 6 at 49.
¶3             The appellant filed an equal employment opportunity (EEO) complaint
     alleging that he was discriminated against on the basis of his age and in reprisal
     for protected EEO activity when the agency proposed his removal and he was
     forced to retire. IAF, Tab 6 at 9-28. After the agency issued a final agency
     decision finding that the appellant had not been discriminated against or
     subjected to reprisal, the appellant filed this appeal. IAF, Tab 1. The agency
     filed a motion to dismiss this appeal for lack of jurisdiction. IAF, Tab 7. After a
     telephonic status conference with the parties, the administrative judge ordered the
     parties to file evidence and arguments regarding the Board’s jurisdiction over a
     constructive removal/retirement claim. IAF, Tab 10. After receiving evidence
     and arguments from both parties, the administrative judge issued an initial
     decision dismissing the appeal, without holding a hearing, finding that the
     appellant had not made a nonfrivolous allegation of a claim within the Board’s
     jurisdiction. IAF, Tab 18, Initial Decision (ID).
¶4             The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition to the appellant’s
     petition. PFR File, Tab 3.
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                                               ANALYSIS
¶5          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).
     The presumption that a retirement is voluntary can be rebutted if the employee
     can establish that his retirement was the product of duress or coercion brought on
     by government action, or of misleading or deceptive information.              Heining,
     68 M.S.P.R. at 519.         Jurisdiction is established in constructive adverse action
     appeals by showing: (1) the employee lacked a meaningful choice in the matter;
     and (2) it was the agency’s wrongful actions that deprived the employee of that
     choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶¶ 8-11 (2013).
¶6          The administrative judge properly found that the inherently unpleasant
     alternatives between retiring and opposing the potential removal action did not
     render the appellant’s retirement involuntary. ID at 4. The administrative judge
     also properly concluded that the appellant’s retirement was not coerced because
     the agency had reasonable grounds for proposing his removal. ID at 5. But the
     administrative judge erred by not also addressing whether the appellant made a
     nonfrivolous allegation that his retirement was involuntary because he materially
     relied on misleading information that was provided by the agency, or that the
     agency had reason to know he was relying on misleading information, but failed
     to correct it.
¶7          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
     his detriment, based on an objective evaluation of the circumstances, his
     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.          The Board has stated that the principles set forth in
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      Covington require an agency to provide information that is not only correct in
      nature but also adequate in scope to allow an employee to make an informed
      decision. Baldwin v. Department of Veterans Affairs, 111 M.S.P.R. 586, ¶ 16
      (2009).   This includes an obligation to correct any erroneous information an
      agency has reason to know an employee is relying on. Id.
¶8          The appellant alleges that an agency manager told him that he would lose
      his retirement benefits if he were removed. IAF, Tab 1 at 2. This appears to be
      misinformation.   Retirement benefits earned over the course of one’s federal
      career are generally available upon separation from federal service, even when
      that separation is agency initiated. See 5 U.S.C. §§ 8312-15 (codifying limited
      circumstances under which an annuity is subject to forfeiture).        This is an
      allegation that the appellant lacked a meaningful choice due to the agency’s act of
      providing incorrect advice, and if true, would constitute an appealable
      constructive removal. See Bean, 120 M.S.P.R. 397, ¶¶ 8-9.
¶9          The record includes evidence that the agency had reason to know the
      appellant was relying on this misinformation. The same manager who allegedly
      told the appellant that he would lose his retirement benefits if he were removed
      stated that in the months leading up to the removal decision the appellant was
      “very concerned” about how a removal would affect his retirement benefits. IAF,
      Tab 6 at 40. Failing to correct erroneous information that it has reason to know
      an employee is relying on is a wrongful action by an agency that may deprive an
      employee of a meaningful choice. Baldwin, 111 M.S.P.R. 586, ¶ 16.
¶10         An employee can make a factual showing sufficient to obtain a
      jurisdictional hearing on misrepresentation-based involuntariness, despite falling
      short of the showing necessary to make a nonfrivolous allegation of coercion.
      Middleton v. Department of Defense, 185 F.3d 1374, 1382 (Fed. Cir. 1999). We
      find that the appellant has made a nonfrivolous allegation that his retirement was
      involuntary because he materially relied on agency misinformation. See, e.g.,
      Aldridge v. Department of Agriculture, 110 M.S.P.R. 21, ¶¶ 11-12 (2008).
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¶11         The appellant has raised defenses in his petition for review, which are not
      relevant to the threshold issue of jurisdiction (due process, disparate penalty,
      harmful procedural error, prohibited personnel practices). PFR File, Tab 1 at 1-3,
      6-8. The petition for review also includes a list of statutes the appellant appears
      to offer as relevant to adjudicating the merits of his appeal. Id. at 8-11. We
      cannot reach any of these issues without first determining whether the Board has
      jurisdiction. See Garcia v. Department of Homeland Security, 437 F.3d 1322,
      1339-40 (Fed. Cir. 2006). If, on remand, the administrative judge determines that
      the Board has jurisdiction over the appeal and reaches adjudication of the merits,
      she should consider the appellant’s other arguments and defenses as appropriate. ∗
      See generally Abbott v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 11 (2014).
¶12         The appellant also states that he was denied discovery. PFR File, Tab 1,
      Attachment AAa1.       An administrative judge has broad discretion in ruling on
      discovery matters, and absent an abuse of discretion the Board will not find
      reversible   error   in   such    rulings.      Vaughn      v.   Department     of   the
      Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). The administrative judge denied the
      appellant’s motion to compel discovery because he failed to comply with 5 C.F.R.



      ∗
        The appellant has also renewed his claim of reprisal for protected EEO activity in his
      petition for review. PFR File, Tab 1 at 2; see ID at 5. On remand, the administrative
      judge should consider the appellant’s claim of retaliation to the extent that evidence of
      this claim relates to the voluntariness of his retirement. See Pickens v. Social Security
      Administration, 88 M.S.P.R. 525, ¶ 6 (2001) (finding that, when allegations of
      discrimination and reprisal are alleged in connection with a determination of
      voluntariness, such evidence of discrimination or retaliation may only be addressed
      insofar as it relates to the issue of voluntariness and not whether the evidence would
      establish discrimination or reprisal as an affirmative defense).             Should the
      administrative judge find jurisdiction over the appeal and reach adjudication of the
      merits, she may then consider this claim as a separate affirmative defense. See
      Fahrenbacher v. Department of Veterans Affairs, 89 M.S.P.R. 260, ¶ 9 (2001) (finding
      that the Board adjudicates claims of discrimination and reprisal under the standards
      applicable for proof under Title VII only after the appellant has established that the
      Board has jurisdiction over the appeal by proving that the retirement was involuntary).
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      § 1201.73(c)(1) and (d)(3). IAF, Tab 17; 5 C.F.R. § 1201.74. We do not find
      that the administrative judge abused her discretion in denying the appellant’s
      motion to compel discovery. However, on remand both parties should be given
      an opportunity to conduct discovery on the jurisdictional issue identified in this
      order.

                                           ORDER
¶13            For the reasons discussed above, we REMAND this appeal to the regional
      office for a jurisdictional hearing in accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
