Stanley A. Mungaray v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY A. MUNGARAY, DOCKET NUMBER
Appellant, DC-0752-15-0622-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 9, 2016
SECURITY,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Joseph E. Benitez, Coral Gables, Florida, for the appellant.
James L. Attanasio and Tobias J. Weyer, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the appeal to the regional office for a hearing on the merits of the
agency’s removal decision in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On November 18, 2014, the agency proposed to remove the appellant from a
Customs and Border Patrol International Officer position for misconduct. Initial
Appeal File (IAF), Tab 6 at 23-26. On February 25, 2015, the appellant
submitted an application for immediate retirement, requesting that his retirement
be effective on March 17, 2015. Id. at 21-22. On March 17, 2015, the agency
issued a decision removing the appellant from Federal service effective upon his
receipt of the letter. Id. at 17-20. The decision is signed by the deciding official,
and the appellant acknowledged his receipt of the decision on March 17, 2015.
Id. at 20. The agency generated a Standard Form 50 documenting his separation
from service as a voluntary retirement effective March 17, 2015. Id. at 16.
¶3 The appellant filed an appeal alleging that the removal action had been
taken in retaliation for protected disclosures. IAF, Tab 1 at 11-12. The
administrative judge issued an acknowledgment order that explained the standard
for establishing the Board’s jurisdiction over an involuntary retirement and
ordered the appellant to file evidence and argument establishing the Board’s
jurisdiction over the appeal. IAF, Tab 2 at 2-3. The appellant did not respond to
this order, and the administrative judge issued an initial decision, without holding
a hearing, finding that the appellant had not established the Board’s jurisdiction
over his appeal because he had not alleged that his retirement was involuntary.
IAF, Tab 7, Initial Decision (ID).
¶4 The appellant has filed a petition for review contesting the merits of the
agency’s removal action. Petition for Review (PFR) File, Tab 1. The agency has
opposed the petition for review, arguing that the appellant has not identified any
new and material evidence that was not available before the record closed below
and has not identified any error in the adjudication of the appeal. PFR File,
3
Tab 3. Based on our review of the record, we find that this appeal must be
remanded for adjudication under the standards applicable to the appeal of a
removal action.
¶5 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). However, once
a decision to remove has been issued, the appellant retains the right to appeal the
removal to the Board, even if he separates from Federal service through
retirement on or before the date the removal would have become effective.
5 U.S.C. § 7701(j); Mays v. Department of Transportation, 27 F.3d 1577,
1579-81 (Fed. Cir. 1994). In such cases, the Board analyzes the appeal as a
removal action. Norton v. Department of Veterans Affairs, 112 M.S.P.R. 248,
¶ 2 (2009).
¶6 The administrative judge analyzed the appellant’s appeal as an involuntary
retirement, and he dismissed it for lack of jurisdiction. ID at 5-8. However,
because the agency finalized and issued its removal decision, the appeal should
have been analyzed as a removal action. See Richards v. Department of Veterans
Affairs, 74 M.S.P.R. 17, 18, 20 (1997) (remanding an appeal for adjudication as a
removal action because, although the appellant applied to retire while a proposed
removal was pending, the agency subsequently issued an appealable decision
directing the appellant’s removal). Whether the appellant’s retirement was
involuntary need not be addressed on remand. Scalese v. Department of the Air
Force, 68 M.S.P.R. 247, 249 (1995).
4
ORDER
¶7 For the reasons discussed above, we remand this appeal to the regional
office for further adjudication of this appeal as a removal action in accordance
with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.