Joseph Francis Covella, Jr v. Social Security Administration

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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