UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

STANLEY A. MUNGARAY, Appellant,

v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DC

- 0752

- 15

- 0622

- I

- 1

DATE: June 9, 2016



### THIS ORDER IS NONPRECEDENTIAL *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* A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 dec ision in accor dance with this O rder.

DISCUSSION OF ARGUME NTS 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, t he agency issued a decision removing the appellant from Feder al 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 documen ting 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 administra tive 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 . I AF, Tab 2 at 2

- 3. The appellant did not re spond 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 a lleged 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 petiti on for review , arguing tha t 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 adjudicatio n of the appeal. PFR File,3

Tab 3. Based on our review of t he record, we find that this appeal must be remand ed 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 , 2 7 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 judg e analyzed the appellant’s appeal as an involuntary retirement , and he dismis sed it for lack of jurisdiction. ID at 5

- 8. However, because the agency finalized and issued its removal decision, the appeal should have been a nalyzed 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 a n appealable decision directing the appellant’s removal)

. Whether the appellant’s retirement was involuntary need not be addressed on remand . S calese 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:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board