UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH L. GALINDO,

Appellant,

v.

DEPARTMENT OF COMMERCE,

Agency.

DOCKET NUMBER

DC-0752-19-0057-I-1

DATE: May 13, 2024

THIS ORDER IS NONPRECEDENTIAL1

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. 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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.

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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.

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