                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH FRANCIS COVELLA, JR.,                    DOCKET NUMBER
                   Appellant,                        AT-0752-16-0188-I-1

                  v.

     SOCIAL SECURITY                                 DATE: September 20, 2016
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John Durishan, Esquire, Atlanta, Georgia, for the appellant.

           Christopher Yarbrough, Esquire, and Joseph P. Polermo, III, Atlanta,
             Georgia, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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.            Except as expressly
     MODIFIED by this Final Order concerning the basis for the Board’s lack of
     jurisdiction in light of the appellant’s arguments on review, we AFFIRM the
     initial decision.

                                       BACKGROUND
¶2         The appellant formerly was employed by the agency as a Claims
     Representative until he retired effective September 2, 2014. Initial Appeal File
     (IAF), Tab 1 at 1, 4. On December 2, 2015, he filed a Board appeal alleging that
     his retirement was involuntary. 2 IAF, Tab 1. On his appeal form he indicated
     that, in June 2014, he contacted a human resources representative concerning his
     retirement eligibility and was informed that he would be eligible to retire on
     September 30, 2014, because he would turn 60 years old that month and he had
     2
        Prior to this, on September 24, 2015, the appellant filed a Board appeal of a
     reconsideration decision of the Office of Personnel Management, which found that he
     had been overpaid $11,389.01 in annuity benefits under the Federal Employees’
     Retirement System from October 1, 2014, through April 30, 2015. Covella v. Office of
     Personnel Management, MSPB Docket No. AT-0845-16-0001-I-1, Initial Appeal File
     (0001 IAF), Tab 1, Tab 5 at 6. During the course of that appeal, the appellant raised an
     allegation that his retirement was involuntary. 0001 IAF, Tab 5 at 12-13, Tab 9 at 1.
     Consequently, the administrative judge advised him that because an involuntary
     retirement claim could impact his overpayment appeal, if he chose to file a separate
     involuntary retirement appeal, she would dismiss the appeal without prejudice to allow
     his involuntary retirement claim to be adjudicated. 0001 IAF, Tab 10 at 2.
                                                                                            3

     over 20 years of service. Id. at 5. The appellant stated that he never would have
     retired had he known that he did not have 20 years of service, and instead would
     have worked an additional 2 plus months and retired in December 2014. Id. He
     also contended that he later inquired about whether his military service could be
     counted towards his retirement and was asked if he wanted to make a deposit for
     part of his military service, but never received any answers to his questions
     regarding the amount of the deposit or what effect it would have on his
     retirement. Id. Ultimately, he asserted that “[s]ince so much time had gone by
     without any retirement funds, I let it go because I couldn’t take any more; I just
     accepted I wouldn’t get any additional monies for military service.” Id.
¶3         The administrative judge issued an order informing the appellant of his
     burden of establishing Board jurisdiction over his appeal.           IAF, Tab 3.    The
     appellant did not respond to the order. The agency moved to dismiss the appeal
     for lack of jurisdiction contending that the appellant’s conclusory and
     unsupported statements failed to constitute a nonfrivolous allegation of Board
     jurisdiction. IAF, Tab 7 at 6-7.
¶4         Without holding the appellant’s requested hearing, the administrative judge
     dismissed the appeal for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID).
     The administrative judge found that the appellant failed to nonfrivolously 3 allege
     that his retirement was involuntary because his statements indicated that he gave
     up trying to obtain retirement credit for his military service and instead accepted
     that he would not receive any additional compensation for military service.
     ID at 5.   The administrative judge further found that the appellant could have
     chosen to stay in his position rather than retire and there was no evidence that the


     3
       Whether the administrative judge applied a nonfrivolous or preponderant evidence
     jurisdictional standard is somewhat unclear. See ID at 5 (stating both that the appellant
     “has failed to make a non-frivolous allegation that his appeal is within the Board’s
     jurisdiction” and also finding that the appellant “failed to prove by preponderant
     evidence that his retirement was involuntary”).
                                                                                      4

     appellant faced time pressure to make a decision concerning his retirement or that
     the agency demanded that he retire. ID at 5-6.
¶5        The appellant has filed a petition for review in which he asserts that he
     did not respond to the jurisdictional order below because neither he nor his
     attorney received the order and contends that the administrative judge erroneously
     interpreted his statements on his initial appeal form. Petition for Review (PFR)
     File, Tab 1 at 5-8, 13. He also submits an affidavit reiterating his contentions
     below that he retired based on misinformation concerning his eligible years of
     service for retirement. Id. at 11-12. In particular, he states, “[h]ad I not been
     misled by the SSA, I would have worked the meager two (2) months more to
     make myself eligible for full retirement benefits. However, only because the SSA
     misled me, I retired two (2) months early.” Id. at 11. The agency has opposed
     the appellant’s petition. PFR File, Tab 3.
¶6        Because the Board’s records reflect that the appellant previously had filed
     an appeal concerning his removal, effective August 29, 2014, just prior to his
     retirement on September 2, 2014, the Board issued a show cause order affording
     the parties an opportunity to submit evidence and argument regarding the effect,
     if any, of the appellant’s prior removal and appeal on the jurisdictional issues in
     this appeal. PFR File, Tab 4. In response, the appellant acknowledged that he
     had retired in lieu of being removed, but reiterated his argument that his decision
     to retire was based on misinformation because “in the face of removal, he was led
     to believe that he had the requisite time in service in order to retire.” PFR File,
     Tab 10 at 7. The agency submitted a response arguing that the appellant failed to
     nonfrivolously allege that his retirement was involuntary because he conceded
     that he had retired to avoid being removed for cause. PFR File, Tab 12 at 8-9.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        An employee-initiated action, such as a retirement, is presumed to be
     voluntary, and thus outside the Board’s jurisdiction.    Vitale v. Department of
                                                                                         5

     Veterans Affairs, 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement is
     tantamount to a removal, however, and is therefore subject to the Board’s
     jurisdiction. Id. To overcome the presumption that a retirement is voluntary, an
     employee    must   show   that   the   retirement   was    the   product   of   agency
     misinformation, deception, or coercion.       Id., ¶ 19.     The touchstone of the
     voluntariness analysis is whether, considering the totality of the circumstances,
     factors operated on the employee’s decision-making process that deprived him of
     freedom of choice. Searcy v. Department of Commerce, 114 M.S.P.R. 281, ¶ 12
     (2010). To establish involuntariness on the basis of misinformation, an appellant
     must show that the agency provided misinformation, he reasonably relied on that
     misinformation, and his reliance was to his detriment.           Paige v. U.S. Postal
     Service, 106 M.S.P.R. 299, ¶ 9 (2007).
¶8        An appellant is entitled to a hearing on the issue of the Board’s jurisdiction
     over an appeal of an alleged involuntary retirement only if he makes a
     nonfrivolous allegation casting doubt on the presumption of voluntariness.
     Burgess v. Merit Systems Protection Board, 758 F.2d 641, 642‑43 (Fed. Cir.
     1985). A nonfrivolous allegation is an assertion that, if proven, could establish
     the matter at issue. 5 C.F.R. § 1201.4(s).
¶9        Having considered the appellant’s assertions on review, we find that he has
     failed to nonfrivolously allege that his retirement was involuntary based on
     misinformation concerning his years of creditable service. On the date he retired,
     the appellant did not have 20 years of creditable service under the Federal
     Employees Retirement System, but rather 19 years, 8 months and 22 days, and,
     thus, he retired under the minimum retirement age plus 10 years of service
     annuity calculation. Covella v. Office of Personnel Management, MSPB Docket
     No. AT‑0845‑16‑0001‑I‑1, Initial Appeal File, Tab 5 at 34, 42. As such, the
     appellant’s allegations; namely, that the agency told him that he had 20 years of
     creditable service and he never would have retired had he known he did not, if
                                                                                            6

      proven, could demonstrate that he reasonably relied on misinformation in
      deciding to retire.
¶10            However, the appellant concedes that he retired in lieu of being removed
      from service on August 29, 2014. 4 PFR File, Tab 10 at 8. Therefore, he could
      not, as he contends in his affidavit, simply have continued to work the additional
      few months until he was eligible for full retirement benefits. PFR File, Tab 1
      at 11.     Thus, we find that he has failed to nonfrivolously allege that he
      detrimentally relied on agency misinformation in deciding to retire because, had
      he not retired on September 2, 2014, he would have been removed from Federal
      service 1 workday earlier on August 29, 2014. See Schultz v. United States Navy,
      810 F.2d 1133, 1136 (Fed. Cir. 1987) (stating that the fact that an employee faces
      an unpleasant choice of either resigning or facing removal for cause does not
      render his decision involuntary). Under such circumstances, he would have been
      eligible to receive retirement benefits based upon the same number of years of
      service as he is currently receiving. See Morrison v. Department of the Navy,
      122 M.S.P.R. 205, ¶ 8 (2015) (stating that retirement benefits earned over the
      course of an employee’s Federal career generally are available upon separation
      from Federal service, even when that separation is agency initiated).
¶11            Despite the appellant’s sworn statement that, absent the agency’s
      misinformation, he would have continued to work for a few more months until he
      reached 20 years of service, PFR File, Tab 1 at 11, he also appears to argue that,
      absent the agency’s misinformation, he could have elected to appeal his removal
      and attempted to negotiate a settlement agreement that allowed him to retire with
      20 years of service, PFR File, Tab 10 at 8. We find that this bare, unsworn, and
      inconsistent assertion fails to constitute a nonfrivolous allegation that he relied on


      4
        Although the agency issued a decision to remove the appellant from Federal service
      effective August 29, 2014, see PFR File, Tab 12 at 5, 46-48, when it received the
      appellant’s retirement application, it was accepted effective September 2, 2014, see id.
      at 40.
                                                                                        7

      agency misinformation to his detriment.         Notwithstanding his retirement on
      September 2, 2014, the appellant filed a removal appeal on September 9, 2014,
      which he later voluntarily withdrew on November 13, 2014. Covella v. Social
      Security Administration, MSPB Docket No. AT-0752-15-0023-I-1, Tabs 1, 8.
      The appellant could have continued with that appeal, had he wished to do so.
¶12         Accordingly, because the appellant’s arguments on review fail to constitute
      nonfrivolous allegations that his retirement was involuntary, we affirm the
      dismissal of his appeal for lack of jurisdiction.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

      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
                                                                                  8

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.
