Jorge Guzman v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JORGE M. GUZMAN, DOCKET NUMBER

Appellant, SF-0752-15-0170-C-1

v.

DEPARTMENT OF HOMELAND DATE: January 6, 2023

SECURITY,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

James P. Walsh, Long Beach, California, for the appellant.

Carolyn D. Jones, Esquire, Williston, Vermont, for the agency.

John B. Barkley, Esquire, Phoenix, Arizona, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

ORDER

¶1 The agency has filed a petition for review of the compliance initial

decision, which found that the agency was not in compliance with the Board’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

final decision reversing the appellant’s removal. For the reasons set forth below,

we DENY the agency’s petition for review and AFFIRM the compliance initial

decision’s finding that the agency is in noncompliance, AS MODIFIED to set

forth additional precedent supporting the administrative judge’s analysis .

Because of the changed circumstances since the compliance initial decision was

issued, we FURTHER MODIFY the compliance initial decision to clarify how the

agency can meet its obligation to provide the appellant with status quo ante relief.

BACKGROUND

¶2 The agency issued a decision removing the appellant from his Assistant

Special Agent in Charge position, a law secondary enforcement officer (LEO)

position under the Federal Employees’ Retirement System (FERS). Guzman v.

Department of Homeland Security, MSPB Docket No. SF-0752-15-170-I-1, Initial

Appeal File (IAF), Tab 6 at 18, 20-24, Tab 52 at 92. The agency charged the

appellant with lack of candor. IAF, Tab 10 at 268. The appellant retired in lieu

of removal on November 21, 2014. 2 IAF, Tab 6 at 18.

¶3 On appeal, the appellant denied the misconduct and alleged, among other

things, that the removal constituted retaliation for whistleblowing. IAF, Tabs 1,

24. The administrative judge properly found that the Board had jurisdiction over

the removal action. 3 Guzman v. Department of Homeland Security, MSPB Docket

No. SF-0752-15-0170-I-2, Appeal File (I-2 AF), Tab 39, Initial Decision (I-2 ID)

2

There is no evidence that the agency rescinded the action removing the appellant from

his position after the effective date of his retirement. See Jenkins v. Merit Systems

Protection Board, 911 F.3d 1370, 1374 (Fed. Cir. 2019) (holding that an appeal in

which a removal has been cancelled and its consequences eliminated does not implicate

5 U.S.C. § 7701(j), which prohibits the Board from taking an individual’s retirement

status into account in determining whether it has jurisdiction over a removal, because

the case no longer involves a removal).

3

When an employee decides to retire because his employing agency has issued a

decision to remove him, and the employee retires on the date the removal was to

become effective, the employee does not lose the right to file a Board appeal conte sting

the removal. Scalese v. Department of the Air Force, 68 M.S.P.R. 247, 249 (1995).

3

at 1-2, 4-5. 4 She also found that the agency failed to prove its charge, I-2 ID

at 14-27, and that the appellant proved his allegation of retaliation for

whistleblowing, I-2 ID at 30-39. She reversed the agency’s action and ordered

the agency to cancel the removal, to retroactively restore the appellant effective

November 21, 2014, and to pay the appellant the appropriate amount of back pay,

with interest, and benefits in accordance with the Office of Personnel

Management’s regulations. I-2 ID at 39-40. She informed the appellant of his

right to file a petition for enforcement if the agency did not comply with her

order. I-2 ID at 40. The initial decision became the final decision of the Board

when neither party filed a petition for review. 5 C.F.R. § 1201.113.

¶4 In implementing the Board’s order to reinstate the appellant, the agency

issued a Standard Form 50 (SF-50) cancelling his voluntary retirement, effective

November 21, 2014. Guzman v. Department of Homeland Security, MSPB

Docket No. SF-0752-15-0170-C-1, Compliance File (CF), Tab 6 at 31. On the

same date that the cancellation was effected, the agency issued a second SF -50

with an effective date of July 31, 2016, the end of the month in which the

appellant reached his 57th birthday, mandatorily retiring him pursuant to 5 U.S.C.

§ 8425(b)(1). Id. at 15, 32, 40. The agency stated that the retirement action was

required because the appellant was subject to the mandatory retirement provisions

of section 8425(b)(1) that applied to LEOs. Id. at 15. Based on these actions, the

agency calculated back pay and related compensation, leave, and benefits based

on the period between November 21, 2014, and July 31, 2016. Id.; CF, Tab 7

at 10-13. Because of the allegedly mandatory separation, the agency did not

restore the appellant to duty. CF, Tab 6 at 15.

4

The administrative judge dismissed the first-filed appeal without prejudice, finding

that a dismissal without prejudice was appropriate to ensure the parties had ample time

to prepare for hearing. IAF, Tab 70. The appeal was automatically refiled on August 1,

2015. I-2 AF, Tab 1.

4

¶5 The appellant filed a petition for enforcement alleging that the agency had

not complied with the Board’s order because, notwithstanding the agency’s

assertion that the appellant’s retirement was mandatory, his separation in

July 2016 failed to comply with all of the provisions of section 8425(b)(1). CF,

Tab 1 at 6-9. In particular, the appellant asserted that the agency failed to comply

with the provisions of section 8425(b)(1) requiring the agency to notify the

employee in writing of the date of separation at least 60 days before that date and

stating that an action to separate the employee is not effective, without the

consent of the employee, until the last day of the month in which t he 60-day

notice expires. CF, Tab 14 at 5-6.

¶6 The administrative judge agreed with the appellant. She found that, in

order to subject the appellant to the statute’s mandatory separation provision, the

statute required the agency to give him 60 days’ not ice and not mandatorily

separate him until the end of the notice period. CF, Tab 21, Compliance Initial

Decision (CID) at 7. She ordered the agency to restore the appellant to duty and

provide him the appropriate notice under 5 U.S.C. § 8425. CID at 8. She found

that the appellant was entitled to back pay until the date of his restoration to duty,

and to regular pay after that date until, at minimum, the end of the 60 -day notice

period. Id.

¶7 In its petition for review, the agency asserts that the administrative judge

erred in ordering it to restore the appellant to duty and provide him with a 60 -day

notice pursuant to 5 U.S.C. § 8425(b)(1). Petition for Review (PFR) File, Tab 5. 5

5

The appellant responded to the petition. PFR File, Tab 7. The response is 58 pages

long, consisting of 18 pages of facts and argument and 40 pages of exhibits. Id.

Accompanying the response is a motion to file an oversized pleading of 58 pages. PFR

File, Tab 8. A response to a petition for review is limited to 30 pages or 7500 words,

whichever is less, exclusive of any table of contents, table of authorities, attachments,

and certificate of service. 5 C.F.R. § 1201.114(h). Therefore, the appellant’s motion is

denied as unnecessary. The appellant’s exhibits are dated after the close of the record

below. PFR File, Tab 7 at 23-61; CF, Tabs 9, 16. Even assuming that they were

unavailable, despite the appellant's due diligence, when the record closed, they do not

5

ANALYSIS

We agree with the administrative judge that the agency is not in compliance with

the Board’s order.

¶8 Pursuant to 5 U.S.C. § 7701(j), an appellant who retires in the face of a

final removal decision, and whose removal subsequently is invalidated, is entitled

to the same relief as if he did not retire, i.e., status quo ante relief. Paula v.

Social Security Administration, 119 M.S.P.R. 138, ¶ 14 (2013). Status quo ante

relief requires placing the injured party, as near as possible, in the position he

would have held had the wrong not been committed. Kerr v. National Endowment

for the Arts, 726 F.2d 730, 733 n.3 (Fed. Cir. 1984). At issue here is the nature

and extent of the status quo ante relief to which the appellant is entitled under

section 8425(b)(1).

¶9 Section 8425(b)(1) provides for the mandatory separation of an LEO who is

otherwise eligible for immediate retirement under FERS, such as the appellant, on

the last day of the month in which that LEO becomes 57 years of age or

completes 20 years of service if then over that age. The section also provides in

relevant part:

The employing office shall notify the employee in writing of the date

of separation at least 60 days before that date. Action to separate the

employee is not effective, without the consent of the employee, until

the last day of the month in which the 60-day notice expires.

5 U.S.C. § 8425(b)(1). The agency contends that the administrative judge

improperly interpreted the status quo ante relief to which the appellant is entitled

under the quoted provision of section 8425(b)(1).

¶10 The Board has not issued any precedential decision regarding the

interpretation of these sentences. Essentially identical sentences appear in

another statutory provision, 5 U.S.C. § 8335(b)(1), which provides for the

mandatory separation of an LEO who is otherwise eligible for retirement under

address the dispositive issue in this case, which is a question of statutory interpretation,

and thus are not material to the outcome in this case. See 5 C.F.R. § 1201.115(d).

6

the Civil Service Retirement System on the last day of the month in which that

LEO becomes 57 years of age. Section 8335(b)(1) similarly provides in relevant

part:

The employing office shall notify the employee in writing of the date

of separation at least 60 days in advance thereof. Action to separate

the employee is not effective, without the consent of the employee,

until the last day of the month in which the 60-day notice expires.

5 U.S.C. § 8335(b)(1). Although section 8335(b) was first enacted as part of Pub.

L. No. 93–350, 88 Stat. 355 (July 12, 1974), and section 8425 was enacted as part

of Pub. L. No. 99-335, 100 Stat. 514, 540 (June 6, 1986), these sections providing

for mandatory age-based separation may be given the same interpretation.

Eatmon v. Department of Energy, 79 M.S.P.R. 96, ¶ 6 (1998), vacated on other

grounds by Eatmon v. Department of Energy, 84 M.S.P.R. 496 (1999).

¶11 In Lynch v. Nelson, Civ. A. No. 87–0424, 1987 WL 8502 (D.D.C. Mar. 11,

1987), the United States District Court for the District of Columbia was called

upon to interpret section 8335(b)(1). In that case, an LEO employed by the

Immigration & Naturalization Service (INS) and separated, after the Board

mitigated his removal, because he had reached 55 years of age , 6 contended that

the INS never properly notified him of any separation, that he never consented to

his separation, and that he was legally entitled to 60 days’ written notice before

his employment ended. Lynch, 1987 WL 8502, at *1.

¶12 The court briefly laid out the administrative history of the case. In

January 1985, INS placed the plaintiff on enforced sick leave from his job as a

Border Patrol Intelligence Agent. Four months later, INS removed him on

various charges. The plaintiff thereupon filed an appeal with the Board of this

removal and the prior enforced sick leave. A Board administrative judge

mitigated the removal to a 30-day suspension. The decision was affirmed by the

6

The statute was amended after the issuance of this decision to increase the mandatory

retirement age for LEOs to age 57. See Isabella v. Department of State, 106 M.S.P.R.

333, ¶ 41 n.12 (2007), aff’d on recons., 109 M.S.P.R. 453 (2008).

7

Board in a Final Order that required the INS to cancel the enforced sick leave and

the removal and to substitute therefor a 30-day suspension. Lynch v. Department

of Justice, 32 M.S.P.R. 33, 43 (1986).

¶13 The court explained that INS never complied with the Board’s order, which

the same administrative judge later decided implicitly included a requirement that

the agency return the plaintiff to duty in his position of GS -11 Intelligence Agent.

Lynch, 1987 WL 8502, at *1. Rather, INS notified the plaintiff that he had been

separated from the agency effective May 31, 1986, the last day of the month of

his 55th birthday, and that he would not be reinstated to his job. Id. When the

plaintiff filed a petition for enforcement of the Board’s order, INS sent him a

telex informing him that in the event the retroactive notice to May 31, 1986, was

ineffective, he would now be on notice that his retirement would take effect

60 days hence, on February 28, 1987. Id.

¶14 The plaintiff thereafter filed a civil action with the court, and on

February 20, 1987, the court issued a temporary restraining order (subsequently

extended through March 12, 1987), prohibiting INS from discharging the

plaintiff. Id. While the temporary restraining order was in effect, the

administrative judge issued his opinion on February 27, 1987, finding that INS

would not be in compliance with the earlier Board order until it reinstated

plaintiff to his job. Id. Thereafter, the INS did, in fact, reinstate the plaintiff to

his job on March 5, 1987, but made it clear that he would once again be removed

as soon as the court’s temporary restraining order expired. The plaintiff then

moved for a preliminary injunction. Id.

¶15 The court found that the sole question remaining was whether INS ever

properly separated the plaintiff from his job. Lynch, 1987 WL 8502, at *2. The

court found that section 8335(b)(1) “could not be more explicit” in its

requirement that no law enforcement officer may be separated without 60 days ’

written advance notice. Id. It found, therefore, that INS’s attempt on

December 29, 1986, to notify the plaintiff of his removal 7 months previously did

8

not constitute a lawful notice because it was not given in advance of the

separation with at least 60 days further service to follow. Id.

¶16 The court found that the February 27, 1987 notice was likewise legally

ineffective. Id. When that notice was provided, the plaintiff was not, in fact,

employed by INS because the agency had failed to reinstate him in compliance

with the Board’s order. Id. Thus, INS did not and obviously could not comply

with the statute’s requirement that it “notify the employee” at least 60 days before

his retirement. Id. The court found that the 60-day notice to be provided an

“employee” pursuant to section 8335(b)(1) has “substantive meaning and

benefits” not discharged by a notice, such as that given by INS, that was both

retroactive and prospective in its application. Id.

¶17 While the Board is not bound by the decision of the court in Lynch, the

Board may look to it for guidance to the extent it finds the court’s reasoning

persuasive. See Holton v. Department of the Navy, 123 M.S.P.R. 688, ¶ 23 n.6

(2016), aff’d, 884 F.3d 1142 (Fed. Cir. 2018); Mynard v. Office of Personnel

Management, 108 M.S.P.R. 58, ¶¶ 13-16 (2008); Walker v. Department of the

Army, 104 M.S.P.R. 96, ¶ 11 n.2 (2006). Here, we find the court’s reasoning

persuasive. Moreover, it is particularly appropriate to follow the court’s guidance

in Lynch because it appears that the court was agreeing with the decision of the

Board’s administrative judge, with which the full Board implicitly agreed in a

Final Order. See Lynch v. Department of Justice, MSPB Docket

Nos. SE075285C0179, SE075285C0182, Order (Sept. 4, 1987).

¶18 Because the language of section 8335(b)(1) that was interpreted by the court

is identical to the language of section 8425(b)(1), we find that the 60-day notice

to be provided an employee pursuant to section 8425(b)(1) has substantive

meaning and benefits and must be discharged according to the plain language of

the statute. Thus, an agency with an employee subject to the provisions of

section 8425(b)(1) must notify the “employee” in writing of the date of separation

at least 60 days in advance thereof. Also, an action to separate the employee is

9

not effective, without the consent of the employee, until the last day of the month

in which the 60-day notice expires. For these reasons, we affirm the

administrative judge’s conclusion that the agency was not in compliance with the

Board’s order at the time that the compliance initial decision was issued.

As a result of the changed circumstances since the compliance initial decision

was issued, we clarify the agency’s obligation to provide status quo ante relief to

the appellant.

¶19 Following the issuance of the compliance initial decision, the agency could

have restored the appellant and provided him with 60 days’ notice before

mandatorily separating him. During this 60-day period, the appellant could have

sought from the agency head an exemption from mandatory retirement until he

reached age 60, per 5 U.S.C. § 8425(b)(1). 7 Once the appellant was restored and

the 60-day notice period expired, the agency could have then mandatorily retired

him if the exemption request was denied, which likely would have ended the

agency’s obligation to provide further status quo ante relief . 8

¶20 However, the issue of status quo ante relief is complicated by the fact that

the appellant turned 60 on July 28, 2019, while the agency’s petition for review

was pending. CF, Tab 6 at 31. Because age 60 was the mandatory retirement age

if the agency head granted an exemption request, 9 the Board lacks the authority to

7

The record reflects that the appellant repeatedly asked for information about how to

request such an exemption. CF, Tab 12 at 4, 22, Tab 14 at 17.

8

The agency argues that providing the appellant with back pay and benefits beyond the

end of the month in which he turned 57 would place him in a better position than if he

had not retired in lieu of removal and exceeds status quo ante relief. PFR File, Tab 5

at 9-10. While the agency is correct that it is uncertain whether the appellant would

have been granted an exemption from the mandatory retirement age, i t was the agency’s

wrongful adverse action that led to the appellant’s retirement prior to reaching age 57,

and the agency’s subsequent failure to restore the appellant and provide him with the

statutorily required 60-day notice once the action was reversed that extended the period

of back pay even longer. Thus, we are not persuaded by the agency’s argument in this

regard.

9

Pursuant to 5 U.S.C. § 8425(e), the President, by Executive Order, may exempt an

employee from automatic separation if the public interest so requires. There is

10

order the agency to retroactively restore the appellant and/or to provide 60 days’

notice before mandatorily separating him. Nevertheless, the agency remains

obligated to provide the appellant with, as nearly as possible, status quo ante

relief. Kerr, 726 F.2d at 733. Under the circumstances of this matter—including

the agency’s failure to restore the appellant and to comply with the 60 -day notice

provision of 5 U.S.C. § 8425(b)(1) and the fact that the appellant is now over age

60—the agency can provide the appellant with meaningful status quo ante relief

by (1) canceling the November 21, 2014 retirement, (2) providing the appellant

with the appropriate amount of back pay, with interest, and adjusting his benefits

with appropriate credits and deductions in accordance with the Office of

Personnel Management’s regulations for the period of November 21, 2014,

through July 31, 2019, and (3) processing his mandatory retirement, effective

July 31, 2019. 10

ORDER

¶21 We ORDER the agency to submit to the Clerk of the Board within 60 days

of the date of this Order satisfactory evidence of compliance as described herein.

This evidence shall adhere to the requirements set forth in 5 C.F.R.

§ 1201.183(a)(6)(i), including submission of evidence and a narrative statement

of compliance. The agency must serve all parties with copies of its submissions.

¶22 The agency’s submission should be filed under the new docket number

assigned to the compliance referral matter, SF-0752-15-0170-X-1. All

subsequent filings should refer to the compliance referral docket number set forth

above and should be faxed to (202) 653-7130 or mailed to the following address:

insufficient evidence that, even if the appellant made such a request, that it would have

been granted under the circumstances. Therefore, we do not consider this provision in

our analysis of status quo ante relief.

10

We acknowledge that the agency has partially complied with this order because it has

already cancelled the November 21, 2014 retirement and calculated back pay and

related compensation, leave, and benefits based on the period between November 21,

2014, and July 31, 2016. Supra ¶ 4.

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Clerk of the Board

U.S. Merit Systems Protection Board

1615 M Street, N.W.

Washington, D.C. 20419

Submissions may also be made by electronic filing at the MSPB’s e -Appeal site

(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.

§ 1201.14.

¶23 The appellant may respond to the agency’s evidence of compliance within

20 days of the date of service of the agency’s submission. 5 C.F.R.

§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of

compliance, the Board may assume that he is satisfied with the agency’s actions

and dismiss the petition for enforcement.

¶24 The agency is reminded that, if it fails to provide adequate evidence of

compliance, the responsible agency official and the agency’s representative may

be required to appear before the General Counsel of the Merit Systems Protection

Board to show cause why the Board should not impose sanctions for the agency’s

noncompliance in this case. 5 C.F.R. § 1201.183(c). The Board’s authority to

impose sanctions includes the authority to order that the responsibl e agency

official “shall not be entitled to receive payment for service as an employee

during any period that the order has not been complied with.” 5 U.S.C.

§ 1204(e)(2)(A).

¶25 This Order does not constitute a final order and is therefore not subject to

judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of

12

the remaining issues in this petition for enforcement, a final order shall be issued

which shall be subject to judicial review.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.