Michael O'Toole v. Department of Defense ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL O’TOOLE, DOCKET NUMBER
Appellant, CH-0752-17-0586-I-1
v.
DEPARTMENT OF DEFENSE, DATE: May 9, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Johnathan P. Lloyd , Esquire, Washington, D.C., for the appellant.
Erin Y. Hart , Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
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 in the following circumstances: 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 the law to the facts of the case; the administrative judge’s rulings
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 to clarify and supplement the
administrative judge’s analysis of the appellant’s misinformation claim, we
AFFIRM the initial decision.
On review, the appellant claims that he received misinformation from the
Office of Personnel Management (OPM) upon which he relied to his detriment in
making his decision to retire. Petition for Review (PFR) File, Tab 1 at 7. He
specifies that OPM induced him to retire based on its 2009 interpretation that
only his basic annuity was subject to division by a court order and then informed
him, after he retired, that his basic annuity and annuity supplement were both
subject to division, and adjusted the apportionment amount payable to his former
spouse in accord with its 2017 interpretation. PFR File, Tab 4 at 4-6; Initial
Appeal File (IAF), Tab 11 at 9, Tab 6 at 13.
The crux of the appellant’s argument is that the administrative judge erred
when she dismissed his appeal for lack of jurisdiction “based solely on her
finding that it was OPM that gave [him] the incorrect information about the
amount of his annuity payment, and not [his employing agency].” PFR File,
Tab 1 at 8. In his view, the administrative judge ignored Board precedent that
states that “whether the employing agency or OPM is the source of the
misinformation or lack of information that induced an employee to retire, to his
detriment, is immaterial to the question of whether the employee’s retirement was
voluntary.” PFR File, Tab 1 at 9; see Isabelle v. Office of Personnel
3
Management, 69 M.S.P.R. 176, 182 (1996); Bannister v. General Services
Administration, 42 M.S.P.R. 362, 366 (1989).
When, as here, there is a claim that an involuntary action resulted from
misinformation, the appellant must show: (1) that the agency made misleading
statements; and (2) that he reasonably relied on the misinformation to his
detriment. Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶ 9 (2010).
The misinformation can be negligently or even innocently provided; if the
employee relies on such misinformation to his detriment, based on an objective
evaluation of the circumstances, his decision to retire is considered involuntary.
Morrison v. Department of the Navy, 122 M.S.P.R. 205, ¶ 7 (2015).
After considering the appellant’s challenges to the administrative judge’s
findings, we discern no reason to disturb the initial decision. While we recognize
that the Board has held that whether the employing agency or OPM is the cause of
the misinformation does not affect the involuntariness of a retirement, we find
that the appellant has not shown that the employing agency or OPM misled him or
that he reasonably relied on the misinformation to his detriment in making his
decision to retire. See Salazar, 115 M.S.P.R. 296, ¶ 9. Because we agree with
the administrative judge’s finding, and the appellant does not dispute that his
employing agency was not the cause of any misinformation, 2 we will only address
his allegations toward OPM. IAF, Tab 13, Initial Decision (ID) at 5-6.
The appellant has not shown that his decision to retire was the product of
misinformation by OPM. Contrary to the appellant’s allegation, the
2
We are not persuaded by the appellant’s claim that Salazar mirrors the instant case on
all material points because the employee in that case received misinformation regarding
his projected annuity. Salazar, 115 M.S.P.R. 296, ¶ 12; PFR File, Tab 1 at 7-8. In
Salazar, the Board held that the employing agency provided the employee with
misinformation, albeit unintentionally, when it provided him with a monthly retirement
annuity estimate based upon incorrect proof of payment in full of a military deposit
because it was the responsibility of the agency to verify the accuracy of the appellant’s
military deposit. Salazar, 115 M.S.P.R. 296, ¶¶ 11-12. Here, it was the responsibility
of OPM, not the employing agency, to make the final determination of the appellant’s
annuity benefits, and the agency informed the appellant of such. IAF, Tab 9 at 22; ID
at 6.
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administrative judge did not make this explicit finding. ID at 5-6. The
administrative judge noted that the appellant provided no other explanation for
his decision to retire other than his disagreement with OPM’s altered calculation
of his annuity benefits. ID at 5. To the extent that the appellant is arguing that
OPM improperly mandated that his FERS annuity supplement was subject to
apportionment, this issue is not to be adjudicated in an involuntary retirement
appeal brought against his employing agency. PFR File, Tab 1 at 7. If the
appellant disagreed with OPM’s altered calculation of his annuity benefits, he
should have appealed OPM’s determination, received a final decision from OPM,
and filed an appeal with the Board. ID at 6.
Here, the appellant takes issue with OPM’s July 2016 internal policy
determination to include the appellant’s FERS annuity supplement in computing
the court-ordered division of his FERS annuity—thus reversing its longstanding
practice of not apportioning the supplemental benefit. PFR File, Tab 4 at 4-6.
Pursuant to a February 2018 report (Management Advisory) from its Office of the
Inspector General (OIG), OPM opines that 5 U.S.C. § 8421(c), which provides
that an annuity supplement “shall, for purposes of section 8467 [court orders], be
treated in the same way as an amount computed under section 8415 [Basic
Annuity],” mandates its change in policy. OPM, OIG, Office of Legal and
Legislative Affairs, Management Advisory, Review of the U.S. Office of Personnel
Management’s Non-Public Decision to Prospectively and Retroactively Re-
Apportion Annuity Supplements, Report No. L-2018-1, at 8 (Feb. 5, 2018), https://
oig.opm.gov/reports/other/review-us-office-personnel-managements-non-public-
decision-prospectively-and (last visited May 9, 2024). For the reasons discussed
below, OPM’s statement regarding the method of dividing the appellant’s
retirement benefit, which did not reflect its subsequent change in policy, cannot
be fairly characterized as misinformation that would vitiate the voluntariness of
the appellant’s appeal.
5
An agency is required to provide accurate information to permit an
employee to make an informed, and thus voluntary, decision regarding
resignation or retirement. Aldridge v. Department of Agriculture, 111 M.S.P.R.
670, ¶ 8 (2009). In making such a determination, we adopt the standard in
Patrick v. Department of Agriculture, 72 M.S.P.R. 509, 521 (1996), review
dismissed, 113 F.3d 1254 (Fed. Cir. 1997) (Table). The controlling issue is what
the agency knew or believed at the time it informed the employee, not what the
agency did after the employee initiated his or her voluntary action. Patrick,
72 M.S.P.R. at 521. Because the information that the appellant received from
OPM was accurate at the time it was given, the appellant has not shown that the
agency made a misleading statement. Id.; see Salazar, 115 M.S.P.R. 296, ¶ 9.
At issue in this appeal are two documents: OPM’s 2009 letter stating that
“Your former spouse’s [marital] share applies to your self retirement annuity
benefit,” IAF, Tab 11 at 9, and OPM’s 2017 letter stating that “[Your former
spouse’s] marital share . . . includes your self-only benefit . . . plus your FERS
annuity supplement,” IAF, Tab 6 at 13. OPM’s explanation of the method of
dividing the appellant’s retirement benefit was consistent with existing
information at the time that it issued the 2009 letter. IAF, Tab 11 at 9. For
almost three decades, OPM had viewed the annuity supplement to be akin to a
Social Security benefit and thus non-allocable between an employee and a former
spouse. See Management Advisory at 8. It had been OPM’s practice to apply the
court-ordered marital share to only the basic (gross monthly) annuity when
calculating benefits to be provided to a former spouse, except when the court
order expressly addressed allocating of the annuity supplement. Id. It was not
until 2016 that OPM began to apply the court-ordered marital share to both the
basic annuity and the annuity supplement, even when the court order does not
address allocating the annuity supplement, as dictated in OPM’s internal
guidance. Id. at i, 7. OPM accordingly notified the appellant of its new
interpretation in its 2017 letter. IAF, Tab 6 at 13.
6
We find it significant that OPM had not effected its change in policy at the
time that the appellant retired. Chaney v. U.S. Postal Service, 67 M.S.P.R. 1, 4
(1995), aff’d, 86 F.3d 1176 (Fed. Cir. 1996) (Table). The fact that, subsequent to
his retirement, the agency decided to reinterpret 5 U.S.C. § 8421(c), which
governs how an annuity supplement is to be apportioned, does not render its
earlier statement misleading or untruthful. See Patrick, 72 M.S.P.R. at 521-22.
To the extent the appellant may be arguing that he relied on inaccurate
information in OPM’s Explanation of Benefits, his argument is without merit.
The record shows, and he does not dispute, that he did not receive it until after he
retired, which undercuts any claim of detrimental reliance that he may raise. IAF,
Tab 11 at 7-8, 11. While we sympathize with his situation, we find that the
appellant has not shown that the agency made a misleading statement or that he
reasonably relied on such a statement to his detriment. See Salazar, 115 M.S.P.R.
296, ¶ 9.
To the extent the appellant is alleging that he lacked sufficient information
to make an informed decision, his allegation is unavailing. While an agency must
provide information that is not only correct in nature but adequate in scope to
allow an employee to make an informed decision, see Baldwin v. Department of
Veterans Affairs, 111 M.S.P.R. 586, ¶ 16 (2009), an agency’s obligation to
provide information cannot apply to information the agency does not have . There
was no other available information that OPM could have furnished the appellant
at the time it issued its 2009 letter. The appellant knew as much as the agency
did at the time he retired in 2015. See Cassel v. Department of Agriculture,
72 M.S.P.R. 542, 548 (1996).
The circumstances alleged by the appellant are insufficient to raise a
nonfrivolous allegation of jurisdiction over his claim on the basis of
misinformation supplied by OPM. 3 Insofar as the administrative judge erred in
3
Because we affirm the administrative judge’s dismissal of the appeal for lack of
jurisdiction, we make no finding as to the timeliness of the appeal.
7
failing to adequately address the appellant’s allegations that OPM provided him
misinformation, given that the appellant did not carry his burden as to the
required elements of his claim, it does not affect the outcome of the appeal. See
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
NOTICE OF APPEAL RIGHTS 4
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
9
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
10
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.