                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
                                                                                       3

     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.
