UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROSE MARIE EDWARDS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-3443-17-0636-I-1

DATE: August 29, 2023

THIS ORDER IS NONPRECEDENTIAL1

Kevin L. Owen, Esquire, and Andrew J. Perlmutter, Esquire, Silver Spring, 

Maryland, for the appellant.

Patricia Reddy-Parkinson, Esquire, Portsmouth, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed her constructive removal appeal for lack of jurisdiction without a 

hearing. For the reasons discussed below, we GRANT the appellant’s petition 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

for review, VACATE the initial decision, and REMAND the case to the regional 

office for further adjudication in accordance with this Remand Order. 

BACKGROUND

¶2 The appellant was a GS-12 Auditor for the agency. Initial Appeal File 

(IAF), Tab 8 at 26. On or about May 8, 2016, the appellant submitted to the 

agency’s Civilian Benefits Center an application for basic retirement under the 

Civil Service Retirement System (CSRS), to be effective February 3, 2017. IAF, 

Tab 2 at 2, 9, Tab 8 at 4, 27-30. Shortly before she filed her application, the 

appellant had obtained an annuity estimate, using the agency’s Employee Benefits 

Information System (EBIS). IAF, Tab 7 at 9-10, Tab 9 at 4. According to the 

EBIS estimate, the appellant could expect to receive an unreduced monthly 

annuity of approximately $3,640 upon her February 2017 retirement. IAF, Tab 9 

at 4.

¶3 Immediately upon receiving the appellant’s application, the Civilian 

Benefits Center assigned the appellant a retirement specialist to help her with the 

process. IAF, Tab 2 at 9. According to the appellant, she discussed her plans 

with the retirement specialist and informed her that she “was excited about the 

monthly annuity amount of $3,640” as reflected in the EBIS estimate. IAF, Tab 7 

at 10. The appellant states that the retirement specialist promised to forward her

a CSRS benefit estimate and service report to review. IAF, Tab 7 at 10.

¶4 Six months passed, and in November 2016, the appellant still had not 

received the CSRS benefits estimate and service report. IAF, Tab 7 at 10-11, 

Tab 8 at 4, 15. The appellant alleges that, on November 18, 2016, she contacted 

the retirement specialist again to inquire about the status of this information. 

IAF, Tab 7 at 10. According to the appellant, the retirement specialist told her 

that she would mail the estimate and report the following week. Id. The 

appellant asserts that, after she failed to receive these documents and her 
3

retirement date drew nearer, she continued trying to contact the retirement 

specialist, but her calls and emails went unanswered and unreturned. Id. at 10-11.

¶5 The appellant separated from service on February 3, 2017, as scheduled. 

IAF, Tab 8 at 26. Approximately 1 month later, on March 1, 2017, the agency 

finally mailed the appellant her CSRS benefit estimate and service report. Id.

at 15. These documents indicated that certain periods of part-time service and 

service for which the appellant had received a refund of retirement contributions

would not be used in calculating her annuity; therefore, the appellant’s gross 

monthly annuity would be $1,991—not $3,640, as reflected in the EBIS estimate. 

Id. at 17-24. The record indicates that, in the end, the Office of Personnel 

Management (OPM) determined the appellant’s gross monthly annuity to be

$1,810.00.

2

 IAF, Tab 2 at 48.

¶6 On June 30, 2017, the appellant filed a Board appeal, seeking reinstatement 

to her Auditor position on the basis that her retirement was involuntary. IAF, 

Tab 1. She requested a hearing. Id. The administrative judge notified the 

appellant of the jurisdictional standard for a constructive removal appeal and the 

need to make a nonfrivolous allegation of jurisdiction in order to receive her 

requested hearing. IAF, Tab 2 at 2-5. After the close of the record, the 

administrative judge issued an initial decision, dismissing the appeal for lack of 

jurisdiction without a hearing. IAF, Tab 10, Initial Decision (ID). She found that 

the agency did not provide the appellant any misinformation, and the appellant 

failed to make a nonfrivolous allegation that she reasonably relied on the 

inaccurate EBIS annuity estimate when she decided to retire. ID at 7-9.

 

2

The agency and OPM notified the appellant of her option to augment the annuity by 

making a deposit or redeposit for parts of her non-credited service. IAF, Tab 2 

at 39-40, 42, 46-48. OPM informed the appellant that she could increase her monthly 

annuity to $3,350 by making a redeposit of $50,864, or to $3,306 by making a deposit 

of $40,421. Id. at 48. However, the appellant determined that she could not come up 

with that kind of money on short notice, so she declined to make a deposit. IAF, 

Tab 10 at 15.
4

¶7 The appellant has filed a petition for review, disputing the administrative 

judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 1. The 

agency has responded to the petition for review, and the appellant has filed a 

reply to the agency’s response. PFR File, Tabs 3-4.

ANALYSIS

¶8 To establish jurisdiction over a constructive removal appeal, an appellant 

must prove by preponderant evidence that (1) she lacked a meaningful choice in

her resignation or retirement; and (2) it was the agency’s wrongful actions that 

deprived her of that choice. Bean v. U.S. Postal Service, 120 M.S.P.R. 397, ¶ 8 

(2013). Once an appellant makes a nonfrivolous allegation of Board jurisdiction, 

i.e., an allegation of fact that, if proven, would establish the Board’s jurisdiction, 

she is entitled to a hearing on the jurisdictional issue. Garcia v. Department of 

Homeland Security, 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc); Thomas v. 

Department of the Navy, 123 M.S.P.R. 628, ¶ 11 (2016).

¶9 The Board has recognized numerous bases for constructive adverse actions, 

including retirement decisions that are based on misinformation. Bean, 

120 M.S.P.R. 397, ¶¶ 8-9. However, even when an employee retires based on 

misinformation, her retirement will only amount to a constructive removal if her 

reliance on that misinformation was the fault of the Government. Id., ¶ 9; see 

Holser v. Department of the Army, 77 M.S.P.R. 92, 95 (1997).

¶10 In this case, the administrative judge found that the agency was not at fault 

for the appellant’s misunderstanding of the amount of annuity that she would 

receive upon retirement. ID at 5-9. The administrative judge found that EBIS 

specifically informed the appellant that the annuity estimate that it generated

might be “significantly overstated” if the appellant had any part-time service or 

unpaid deposits or redeposits (of which the appellant had both). ID at 6-7; IAF, 

Tab 8 at 12. She also observed that EBIS warned the appellant that she “should 

not base a decision to retire on the data contained here.” ID at 7; IAF, Tab 8 
5

at 12. The administrative judge further found that, apart from this EBIS report, 

which the appellant knew or should have known not to rely on in making a 

retirement decision, the agency did not provide the appellant any misleadin g 

information to induce her retirement. ID at 7-9. She concluded that the agency’s 

failure to properly counsel the appellant about her retirement was not the same 

thing as misinforming her about her retirement and that the appellant’s decision 

to retire based on incomplete information did not amount to a constructive 

removal. ID at 8-9.

¶11 On petition for review, the appellant argues that, even in the absence of 

affirmative misinformation, lack of information may be sufficient to support a 

claim of constructive removal. PFR File, Tab 1 at 6-9. We agree with the 

appellant that this can be true under certain circumstances. The important 

question is not whether the appellant’s theory of the case is based on 

misinformation or lack of information; the important question is how the facts of 

the case bear upon the ultimate jurisdictional issues of voluntariness and fault. 

See Bean, 120 M.S.P.R. 397, ¶ 8.

¶12 In this case, we find that the appellant has made a nonfrivolous allegation of 

jurisdiction under the theory that she based her retirement on inaccurate 

information, which the agency had a duty to correct but did not. “An employee 

action is considered to be involuntary if it results from the agency’s failure to 

correct erroneous information that it has reason to know that the employee is 

relying on.” Timberlake v. U.S. Postal Service, 76 M.S.P.R. 172, 175 (1997); 

Drummond v. Department of Veterans Affairs, 58 M.S.P.R. 579, 583-84 (1993). 

As set forth above, the appellant alleged that she informed the retirement 

specialist in or around May 2016 that she was “excited” about the $3,640 monthly 

annuity estimate that she obtained from EBIS. IAF, Tab 7 at 10. However, over 

the next 9 months, the Civilian Benefits Center ignored the appellant’s multiple 

requests for an independent annuity estimate and waited until after her separation 
6

from service to inform her that the EBIS estimate she was relying on was 

overstated by more than 30%. IAF, Tab 8 at 4-5, 15-16. 

¶13 Even considering the stock warning generated by EBIS that the annuity 

estimate might be inaccurate and should not form the basis for a retirement 

decision, it appears undisputed that the agency failed to give the appellant any 

alternative. IAF, Tab 8 at 4-5, 15-16. This is so even though the agency was 

required to give the appellant an accurate and timely annuity estimate both under 

its own regulations and, if the appellant is to be believed, because the retirement 

specialist knew that she was relying on an annuity benefits estimate that might

be incorrect. IAF, Tab 7 at 10; Department of Defense Instruction 1400.25, 

vol. 830 § 3(a) (August 22, 2014), 

https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/140025/140025_v

ol830.pdf. Furthermore, even though the appellant knew or should have known 

that the EBIS estimate might be unreliable, it is not clear that a reasonable 

person in her position might have expected that estimate to be off by more than 

30%. Because the agency, despite multiple requests, failed in its obligation to 

give the appellant an accurate annuity estimate at any time during the 9 months 

leading up to her retirement, the appellant based her retirement decision on the 

best (and only) information that she had at the time, which information 

ultimately proved to be grossly inaccurate. Whether the appellant acted 

reasonably in doing so, and hence whether her retirement amounted to a 

constructive removal, are questions that can only be resolved after a hearing.
7

ORDER

¶14 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board