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Hector M. Tirado v. Department of the Treasury
Citations: 757 F.2d 263; 1985 U.S. App. LEXIS 14745Docket: 85-730
Court: Court of Appeals for the Federal Circuit; March 12, 1985; Federal Appellate Court
Hector M. Tirado, an Internal Revenue Service (IRS) employee, was removed from his position based on three charges: engaging in a physical altercation with a colleague, disrupting office operations, and disobeying a direct order. Tirado appealed his removal to the Merit Systems Protection Board (MSPB), which initially upheld the charges but found that the IRS had improperly failed to file for his disability retirement due to his emotional issues. However, upon the IRS's appeal, the full MSPB affirmed the charges, reinstated the removal penalty, and reversed the finding regarding disability retirement, citing that Tirado lacked the required five years of civilian service as outlined in 5 U.S.C. Sec. 8337(a). The court noted substantial evidence supporting the MSPB's findings, including witness testimony about Tirado's altercations and disruptions. Tirado's primary argument centered on the interpretation of "service" under federal retirement law, asserting that his combined civilian and military service should qualify him for disability retirement. The court upheld the MSPB's interpretation that only civilian service counts toward this eligibility. Section 8337(a) mandates five years of "civilian service" for disability retirement eligibility, which is similarly required under 5 U.S.C. Sec. 8333(a) for non-disability retirement and under 5 U.S.C. Sec. 8338(a) for deferred retirement at age 62. These provisions illustrate Congress's intent to limit civil service retirement eligibility to those with at least five years of federal civilian employment. After meeting this minimum, military service may be included in calculating retirement annuities under specific conditions, but does not affect the basic eligibility requirement. The document argues that it would be unreasonable to interpret these provisions as allowing exceptions to the civilian service requirement. The judgment of the full Merit Systems Protection Board (MSPB) regarding the appropriateness of removal as a sanction is upheld. The Board deemed removal reasonable based on the seriousness of the sustained misconduct, the employee's disruptive behavior and past disciplinary record, prior counseling efforts, the short duration of employment, and the employee's mental state during the incidents. This conclusion aligns with precedent, emphasizing that removal is justified for individuals ineligible for disability retirement who exhibit disruptive behavior. The decision is affirmed by Chief Judge Edward D. Re of the United States Court of International Trade.