Joseph Galindo v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH L. GALINDO, DOCKET NUMBER
Appellant, DC-0752-19-0057-I-1
v.
DEPARTMENT OF COMMERCE, DATE: May 13, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Andrew Schwartz , Esquire, Los Angeles, California, for the appellant.
Christiann Burek and William T. Yon , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
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
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On August 7, 2018, the agency proposed the appellant’s removal from his
Program Analyst position based on charges of failure to follow supervisory
instructions, lack of candor, and inappropriate conduct. Initial Appeal File (IAF),
Tab 5 at 34, 62. The appellant presented an oral reply to the proposal notice. Id.
at 60. In a letter dated September 18, 2018, the deciding official sustained the
removal, effective immediately. Id. at 35-42. After being notified of the removal
decision, the appellant submitted his application for immediate retirement, and
his retirement was effective September 18, 2018. Id. at 32-34, 42. His Standard
Form 52 concerning his retirement indicated, “AGENCY FINDING: RETIRED
AFTER RECEIVING WRITTEN NOTICE ON SEPTEMBER 18, 2018 OF
DECISION TO SEPARATE.” Id. at 33. In addition, his Standard Form 50
indicated that his stated reason for retirement was “TO OBTAIN RETIREMENT
BENEFITS.” Id. at 34.
On October 17, 2018, the appellant timely filed the present appeal
challenging his removal and involuntary retirement. IAF, Tab 1 at 2. He claimed
that the agency’s actions against him constituted whistleblower reprisal and
discrimination based on disability, age, race, and sex. Id. at 3. Without holding
the requested hearing, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction. Id. at 1; IAF, Tab 7, Initial
Decision (ID). She found that the appellant retired and that retirements are
presumed voluntary. ID at 3. She further found that his retirement was not
within the Board’s jurisdiction because he failed to nonfrivolously allege facts to
overcome the presumption of voluntariness. ID at 3-6. She noted that the
appellant could have challenged the removal action against him but chose to
submit an application for immediate retirement instead. ID at 4. She therefore
dismissed the appeal. ID at 6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has replied in opposition. PFR File, Tab 3.
3
DISCUSSION OF ARGUMENTS ON REVIEW
Under 5 U.S.C. § 7701(j), “an individual’s status under any retirement
system established by or under Federal statute . . . may [not] be taken into
account” in “determining the appealability” of a removal. The Board and its
reviewing court have interpreted this section as providing that, even when an
employee retires on the scheduled effective date of his removal, the Board retains
jurisdiction over the employee’s removal appeal. See Mays v. Department of
Transportation, 27 F.3d 1577, 1579-81 (Fed. Cir. 1994); Taber v. Department of
the Air Force, 112 M.S.P.R. 124, ¶ 7 (2009). This is because an employee should
not be forced to choose between electing to receive his retirement benefits and
appealing the agency’s decision to remove him. Krawchuk v. Department of
Veterans Affairs, 94 M.S.P.R. 641, ¶ 6 (2003).
Here, it is undisputed that the appellant elected to retire after the agency
rendered a final decision to remove him. IAF, Tab 1 at 5, Tab 5 at 32-34. We
find, therefore, that the appellant’s decision to retire after receiving the removal
decision does not deprive the Board of jurisdiction to adjudicate an appeal of the
removal action. See Taber, 112 M.S.P.R. 124, ¶ 7. Accordingly, we remand the
appeal to the regional office for adjudication on the merits, including a hearing if
the appellant still seeks one. On remand, the administrative judge shall
adjudicate the appellant’s affirmative defenses of whistleblower reprisal and
discrimination based on disability, age, race, and sex. See Krawchuk,
94 M.S.P.R. 641, ¶ 11.
4
ORDER
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.