dissent.
SKELTON, Senior Circuit Judge, with whom NEWMAN, Circuit Judge, joins, dissenting.
I respectfully dissent.
This litigation, in its present stage, is basically a discrimination case because the *1247reprisal discrimination issue was deliberately not decided by the board. The failure of the board to decide that issue is the sole issue in this appeal. The case is governed and controlled by 5 U.S.C. § 7702, which requires the board to decide both the issue of discrimination and the appealable action. The statute is not enforced by the majority decision. Its applicable provisions state:
§ 7702. Actions Involving Discrimination
(a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who—
(A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and
(B) alleges that a basis for the action was discrimination prohibited by—
(i)section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16),
(v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph,
the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appeal-able action in accordance with the Board’s appellate procedures under section 7701 of this title and this section.
(2) In any matter before an agency which involves—
(A) any action described in paragraph (1)(A) of this subsection; and
(B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection; the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection.
(3) Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of—
(A) the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, or
(B) the date the Commission determines not to consider the decision under subsection (b)(2) of this section. (b)(1) An employee or applicant may,
within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision.
(emphasis supplied).
As may be seen by reading this statute, it is an anti-discrimination law that was enacted by Congress for the specific purpose of eliminating discrimination against employees in the workplace. It was the intention and will of Congress that the statute be complied with by all employers, agencies, and boards. It is the court’s duty to enforce compliance with the statute. If this court fails to require the board to comply with the statute by deciding the discrimination issue in this case, it will be acting contrary to the statute and the will and intention of Congress, and the effect will be to deny due process rights to petitioner (Cruz), as discussed below.
I do not find a full and complete discussion in the majority opinion of the facts nor of the proceedings below. This is necessary in order to understand and resolve the issue involved in this appeal. For that reason, an additional statement of the facts and proceedings is as follows.
I. Facts and Proceedings Below
Cruz, with a Ph.D degree, was an Education Services Specialist for the Navy with 24 years of service during which he had received ratings of which seven were outstanding, five highly satisfactory, and one satisfactory. From time to time he encountered difficulties with his superiors which resulted in his filing several administrative EEO complaints against them. He claimed that they unduly criticized and harassed him regarding his work. His troubles increased when a Mrs. Kennedy, a woman younger in service than Cruz, was promot*1248ed over him. He says that no one during his 24 years of service had harassed him with more frequency and fervor than Mrs. Kennedy. He accused her of verbally abusing him both in public and behind closed doors at an area conference, which caused him to suffer a severe anxiety attack that required the services of a psychiatrist and which incapacitated him for a time. He alleged that she continually harassed him over his tuition assistance program and when she ordered him to make a TA presentation at a workshop he had another anxiety attack. She demanded medical certification after disallowing sick leave on more than one occasion. Finally, Cruz alleges that she wrote a letter to her superior requesting that he be removed. Pursuant to this request, the head of the agency issued a proposal on January 29, 1988, to remove Cruz for alleged insubordination and unacceptable work performance.
On February 16, 1988, Cruz submitted a written resignation from his job, stating among other things:
It is under extreme duress, great despondency, and tremendous embarrassment that I submit my resignation. _ On 22 Jan. 1988, determined to expose me, she [Mrs. Kennedy] reissued a request for medical certification ... which brings me to this embarrassing juncture of having to admit that the unbearable problems of having to cope with my job and management have taken their toll on me. I can’t take it any more. I resign because I value my sanity. My resignation is effective 1 Mar. 1988.
(emphasis supplied).
Cruz also signed a government 52 resignation form on February 22, 1988. The form contained a space with the following heading:
Reason for resignation (Note: Please give reason for your resignation).
Cruz wrote in his handwriting the following reasons for his resignation:
Racial discrimination
Reprisal for EEO involvement
Harassment and mental anguish
Cruz’ resignation letter and Form 52 put the government on notice that he was contending that his resignation was involuntary. The Navy separated Cruz on March 1,1988, because of his letter of resignation.
Cruz appealed to the board alleging that his resignation was not voluntary, but was coerced by the actions and duress of the agency, and that the agency had discriminated against him as a reprisal for his having filed Equal Employment Opportunity (EEO) complaints against the agency and its officers. The board exercised its authority and jurisdiction by accepting the appeal and assigning it to an administrative judge (AJ) for trial. The AJ conducted a trial, heard witnesses, made findings of fact, and rendered a decision on both the appealable action of involuntary resignation and the reprisal discrimination issue and on the charges of the agency against Cruz. In his decision, he held that Cruz was guilty of insubordination and that his work was unsatisfactory, and the charges of the agency were sustained. He held that Cruz’ resignation was not involuntary and was not coerced, but was voluntary. The reprisal discrimination issue was decided by the AJ against Cruz by his holding that there was no causal connection between the EEO complaints and the removal action filed by the agency against Cruz. The AJ then dismissed the case for lack of jurisdiction. Cruz then appealed to the full board which denied his petition for review. The board then reopened the case on its own motion and vacated that portion of the AJ’s decision dealing with the reprisal discrimination issue, holding that the AJ should not have decided that issue. The rest of the AJ’s opinion was approved. The board notified Cruz that he had a right to appeal to this court within 30 days. This appeal followed.
II. Discussion
As stated above, this case is governed and controlled by 5 U.S.C. § 7702. That statute provides in clear and unmistakable terms that notwithstanding any other provision of law, in the case of any employee who has been affected by an action which he may appeal to the board and who alleg*1249es that a basis for the action was discrimination prohibited by the Civil Rights Laws, the board shall within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action. (emphasis supplied).
The majority states that there is no ap-pealable action in this case and for that reason the board did not have to decide the discrimination issue. In this, the majority is mistaken.
(1) The Appealable Action
It is well established and universally held by all courts which have considered the question that an involuntary resignation is an adverse action by an agency that may be appealed to the board. This was ably stated by the court in Gratehouse v. United States, 512 F.2d 1104, 1108, 206 Ct.Cl. 288 (1975), when it said:
It is now hornbook law in our jurisdiction that an involuntary resignation constitutes an adverse action by the agency, (cases cited)
An involuntary resignation by an employee is a discharge of that employee by the agency. See Paroczay v. Hodges, 297 F.2d 439, 441, n. 4 (D.C.Cir.1961) where the court said that if a resignation is coerced, the resulting separation constitutes a discharge. On remand of that case, the district court held:
If the resignation was involuntarily given, however, then plaintiff’s separation from government employment constituted a discharge, and he would be entitled to certain procedural rights....
Paroczay v. Hodges, 219 F.Supp. 89, 90 (D.D.C.1963)
In Patrick F.X. McGucken v. United States, 407 F.2d 1349, 1350, 187 Ct.Cl. 284, 287 (1969) the court quoted with approval the above decision of the D.C. Circuit Court in Paroczay as follows:
In Paroczay v. Hodges, 297 F.2d 439 (D.C.Cir.1961), the court stated that the papers before the District Court created a genuine issue of material fact as to the voluntariness of the resignation, and that summary judgment was therefore not proper. In footnote 4, the court also stated:
The issue of coercion is not solved by accepting the contention of defendants that there was no obligation to give the employee an option to resign; for this does not answer the question whether the resignation which was given was coerced. If it was the separation constituted a discharge, and Par-oczay had certain rights under the Veterans’ Preference Act. * * * [Emphasis supplied]. Id. at 441.
(emphasis in original).
The Court of Claims then stated in McGucken:
If the facts in this case indicated that the resignation was not voluntary, then plaintiff should have been afforded a hearing under the Veterans’ Preference Act, 5 U.S.C. § 863 (1964). This is so because, as was stated in Paroczay, supra, an involuntary resignation is a discharge.
407 F.2d at 1350, 187 Ct.Cl. at 287 (emphasis supplied).
The court also held in McGucken:
As the court in Paroczay, supra, indicated, the voluntary nature of a resignation is an issue of fact.
407 F.2d at 1351, 187 Ct.Cl. at 288 (emphasis supplied).
In the concurring opinion of Judge Nichols in the Court of Claims decision in Denis E. Cosby v. United States, 417 F.2d 1345, 1346-1347, 189 Ct.Cl. 528, 530-532 (1969) it is stated:
A coerced resignation is not a resignation at all. It is an adverse action which is legally invalid for failure to follow the procedures laid down in statutes and regulations. McGucken v. United States, 187 Ct.Cl. 284, 407 F.2d 1349, cert. denied, 396 U.S. 894 [90 S.Ct. 190, 24 L.Ed.2d 170] (1969). It necessarily must follow that a purported resignation which stated on 'its face that it was procured by coercion would be null and void, and no resignation. In that event, the employee not having resigned, factual inquiry, whether he was actually *1250coerced would be irrelevant and unnecessary.
Here the employee, in two purported resignations, both times stated he resigned “under protest.” In common speech (see Webster’s Third Unabridged, 1968), as well as among lawyers, the words “under protest” in connection with any action, mean that the person taking it does so because he must and not because he wants to. It suffices to rebut any implication that the action was voluntary.
******
Therefore, nothing decided in this case, as I read it, should be regarded as condoning any relaxation of the vigilance required of the Civil Service Commission and of personnel officers generally, against the acceptance of coerced resignations, whether actually coerced, or so stated in the course of the employee’s filling out the applicable form.
(emphasis supplied).
In Katherine Cunningham v. United States, 423 F.2d 1379, 1385, 191 Ct.Cl. 471, 482 (1970), Judge Nichols stated in his concurring opinion:
I concur in the opinion and judgment of the court. As I said, concurring, in Cosby v. United States, 189 Ct.Cl. 528, 530, 417 F.2d 1345, 1346 (1969):
If an employee’s continued presence in an agency is regarded as undesirable, and if he tenders any piece of paper purporting to be a resignation, the temptation is to snatch at it, thus avoiding the complex ritual and uncertain outcome of an adverse action. It is, I believe, the duty of the personnel officer nevertheless to scrutinize the paper with care, and to reject it as a resignation if it states, clearly or ambiguously, that the resignation is coerced. * * *
The same is true if the statement is made in a separate communication submitted by the employee simultaneously or at any time before the purported resignation takes effect.
(emphasis supplied).
We stated in Schultz v. United States Navy, 810 F.2d 1133, 1136 (Fed.Cir.1987):
However, an ostensibly voluntary resignation which was submitted as a result of agency coercion or because of improper advice on its consequences must be treated the same as an adverse action. Perlman v. United States, 203 Ct.Cl. 397, 490 F.2d 928, 933 (1974).
The teaching of these cases, which is binding on this court, is:
(1) A resignation that shows on its face that it was coerced is an involuntary resignation.
(2) An involuntary resignation is an adverse action that is appealable.
(3) An involuntary resignation is a discharge, and removal that is appealable.
(4) An involuntary resignation entitles an employee to procedural rights, including the right to appeal.
(5) A resignation which shows on its face that it was made under coercion (duress) suffices to rebut any implication that it was voluntary.
(6) The voluntariness of a resignation is an issue of fact that is appealable to the MSPB (i.e. an appealable action).
All of these situations are present in our Cruz case. In the face of these cases and their teaching, how can the majority say that there is no appealable action in the instant case? Does the majority mean to overrule these precedential cases?
A discharge is a removal from office and an adverse action that is appealable to the board under the provisions of 5 U.S.C. § 7512, 7513 and 7701.
Section 7512 provides in pertinent part:
7512. Actions Covered
This subchapter applies to—
(1) A removal
Since an involuntary resignation is an adverse action and a constructive removal from office, it is appealable to the board as an appealable action. The majority admits that this is true when it states in its opinion:
*1251The courts, however, have recognized a corollary proposition, i.e., that the board does have jurisdiction to hear and determine an appeal by an employee whose resignation was not voluntary, an involuntary- resignation being deemed a ‘constructive removal.’
Therefore, Cruz’ claim of an involuntary resignation is a claim of constructive removal from office, which is an adverse action that is appealable to the board under § 7512.
The regulations of the board also provide for an appeal to the board in removal cases. 5 C.F.R. § 752.301.
Cruz’ claim of involuntary resignation is also appealable to the board under § 7513 which provides in pertinent part:
Section 7513. Cause and Procedure
(d) An employee against whom an action is taken under this section is entitled to appeal to the Merit Systems Protection Board under section 7701 of this title.
Section 7701 provides in pertinent part for an appeal as follows:
Section 7701. Appellate procedure
(a) An employee ... may submit an appeal to the Merit Systems Protection Board from any action which is appeal-able under any law, rule or regulation.
In Gratehouse, supra, the court said:
Where there is a nonfrivolous allegation by a government employee that his resignation was involuntary, he is entitled, in the usual case, upon timely appeal to CSC [now the board] to a hearing before that body, [cases cited].
512 F.2d at 1108.
Cruz alleged more than once that his resignation was involuntary because it was the result of duress and coercion. For instance, he alleged before the agency in his letter of resignation and on Form 52 that he was resigning under extreme duress, unbearable and disabling harassment, and mental anguish.
He alleged before the board that “the false nature of the charges and the unlawfulness of the agency’s actions compelled me to involuntarily resign on 16 February 1988.” He also alleged that the communications embargo and onerous working conditions created by his superior, Mrs. Kennedy, coupled with the proposal to remove him was “coercion in its purest form.” He also alleged, “consequently, on 16 February 1988, I accepted the terms of the agency and submitted my resignation. I had no choice. I was under extreme duress. My physical and mental health was faltering and my 25-year marriage was being threatened”. These allegations of involuntary resignation show that Cruz had an appeal-able action that invoked the authority and jurisdiction of the board. The AJ did indeed find that Cruz had alleged an appeal-able action when he found:
In light of the appellant’s assertions, I found that the appellant’s claim constituted a non-frivolous allegation of coercive, involuntary resignation; therefore, he was entitled to a hearing in order to prove his claim.
Under all these facts and circumstances and cited authorities, which the majority cannot ignore, it must be concluded that an appealable action was appealed to the board. Consequently, the majority is clearly in error when it says there is no appeal-able action in the case.
(2) Jurisdiction
The majority takes inconsistent positions on -the board’s jurisdiction. On the one hand, the majority opinion states, “it [the board] did not have jurisdiction to decide anything.” If that were true, the board could not have made all of the findings and decisions on which the majority relies on insubordination, disrespect, neglect of duty and voluntary resignation, etc. On the other hand, the majority cites with approval and agreement more than a dozen times in its opinion the various findings and decisions of the board, thereby enforcing them, while at the same time saying the board did not have jurisdiction to make them. The majority cannot have it both ways. The majority’s inconsistent positions remind me of the old saying that, “you cannot straddle a fence and touch the ground on both sides at the same time.”
*1252The majority took the position at the outset that Cruz’ resignation was voluntary, and it never progressed beyond that point. It never inquired why Cruz resigned, and never considered the fact that his resignation was involuntary due to duress, coercion and harassment. There was no consideration nor discussion of the cases that hold that a resignation due to these causes is involuntary and a discharge and removal from office, and is appealable to the board.
Regardless of the inconsistent position taken by the majority, §§ 7512, 7513, and 7701, and 5 C.F.R. § 752.301, and the above cited cases, plus the admission by the majority, show that the board did indeed have jurisdiction of Cruz’ appeal and did have jurisdiction to make the findings and decisions on which the majority relies. Section 7512 provides that a removal from office may be appealed to the board, and the majority admits this is true. As stated above, the instant case involves a constructive removal from office. Therefore, the board had jurisdiction of the appeal under § 7512. Section 7513 provides that an employee against whom an adverse action is taken is entitled to appeal to the board. A constructive removal from office is an adverse action. Accordingly, the board had jurisdiction of this case under that Section. Also, § 7701 provides that an employee may appeal to the board from any action that is appealable under any law, rule or regulation. That is the situation in this case, so the board had jurisdiction under § 7701. The board acknowledged in its opinion that it could have jurisdiction of an appealable action under § 7513(d) and under § 7701(a). Thus, three different stab utes and the regulation conferred jurisdiction of this case on the board. The majority errs when it says the board did not have jurisdiction of Cruz’ appeal.
(3) Threshold Jurisdictional Cases Distinguished
The majority appears to take the position that Cruz’ involuntary resignation claim is a threshold jurisdictional matter that the board could decide in determining its jurisdiction without deciding the discrimination issue. While the board’s jurisdiction may be a threshold matter in certain mixed cases involving discrimination, the threshold matter in those cases bars the underlying action as a matter of law and are not applicable here. Examples of such cases are situations where the claims are untimely filed, as in Hopkins v. Merit Sys. Protection Bd., 725 F.2d 1368 (Fed. Cir.1984); Wallace v. Merit Sys. Protection Bd., 728 F.2d 1456 (Fed.Cir.1984) and Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244 (Fed.Cir.1984). Other examples are cases where the claim is barred by limitations or laches, or the claimant is not covered by Civil Service Laws, or is a probationary employee without appeal rights, as in Granado v. Department of Justice, 721 F.2d 804 (Fed.Cir.1983), and Wren v. Merit Sys. Protection Bd., 681 F.2d 867 (D.C.Cir.1982), cited by the majority, or is a member of the armed services claiming a civil service annuity where the claim is not allowable, or is an employee claiming an annuity who does not have five years of creditable service required by law. The majority cites Synan v. Merit Sys. Protection Bd., 765 F.2d 1099 (Fed.Cir.1985) which is another threshold case that is not applicable here because there the action was barred by a statute. In that case an employee was suspended for 14 days and he appealed to the board. We held that 5 U.S.C. § 7512(2) barred his appeal because under that statute he could not appeal to the board unless he had been suspended for more than 14 days. In Ballentine, supra, we held that a threshold matter is one not related to the merits of the discrimination claim. In the instant case Cruz’ two claims are intertwined and related. A threshold jurisdictional issue is one that is raised and determined by the pleadings and which bars the action without a hearing because of a statute. There is .no such issue or statute in the instant case.
Cruz’ claim of involuntary resignation is a substantive claim which entitles him to procedural rights, including those of appeal, hearing and decision. His claim is not a threshold jurisdictional matter that bars the underlying action as a matter of law, *1253and it cannot be summarily dismissed by the board under the pretext of determining its jurisdiction.
The majority makes the surprising statement that, “Congress has determined that the board has no jurisdiction over voluntary resignations. 5 U.S.C. § 7512.” It is at once apparent that the majority reads too much into the statute. There is no mention whatever in the statute of a voluntary resignation or any other kind of resignation. The statute does provide for an appeal of a removal from office and, as shown above, a removal includes a constructive removal due to coercion, duress or harassment, which Cruz claims is what happened to him. His claim is appealable to the board.
(4) The Failure of the Agency to Advise Cruz of His Appeal Rights
Cruz stated in his resignation letter and on Form 52 that he signed that he was resigning under extreme duress, harassment and discrimination. Thereafter, there was correspondence between him and the agency regarding his resignation and his right to appeal to the board. The agency acknowledged in writing that Cruz had stated in his letter that he was resigning under “extreme duress.” The agency thus admitted that it was put on notice that Cruz’ resignation was involuntary. Under these circumstances the agency had a duty to advise Cruz that he had a right to appeal an involuntary resignation to the board. The board admitted in its opinion that the agency advised him in writing that, “if he wanted to contest the proposed removal on its merits, he would have to withdraw his resignation,” which implied that he would have no right of appeal if he did not do so, and that withdrawal of his resignation was the only way he could appeal to the board. Cruz was never advised by the agency that he could appeal an involuntary resignation.
The majority says that the agency warned Cruz twice that he would forfeit his appeal rights and that he would suffer a loss of appeal rights if he did not retract his resignation. Furthermore, the majority states that, “By that act, [resignation] Cruz lost all right to appeal any issue to the board.” (emphasis supplied). I respectfully submit that these statements are not in accordance with the law, but are actually contrary to the law, since neither the board nor the majority distinguish between voluntary resignations and involuntary resignations. The case of Alan Donald McCormack v. United States, 204 Ct.Cl. 371 (1974) is squarely in point. That case involved an involuntary resignation situation. There the court said:
The plaintiff did take action sufficient to put the government on notice that the plaintiff viewed the ‘resignation’ as an adverse action. At this point, the government, while it may not acquiesce in plaintiff’s view, must at least inform the plaintiff of the administrative rights attaching to an involuntary resignation.
204 Ct.Cl. at 378.
******
After the plaintiff made it sufficiently clear to the government that he deemed his resignation to be other than voluntary, the government was required to state in detail the various procedures available to the plaintiff to contest the allegedly adverse action and the remedies available.
204 Ct.Cl. at 380.
The court reversed the case because of the failure of the agency to advise the plaintiff of his appeal rights. Also, see Covington v. Department of Health & Human Servs., 750 F.2d 937 (Fed.Cir.1984), and Schultz v. United States Navy, 810 F.2d 1133 (Fed.Cir.1987) which held that it was error for an agency to give the wrong advice to an employee regarding his appeal rights. In Covington we held:
In this case, the agency was responsible for Covington’s lack of an informed choice. A decision made “with blinders on”, based on misinformation or a lack of information, cannot be binding as a matter of fundamental fairness and due process. Cf Shubinsky v. United States, 488 F.2d 1003, 1006, 203 Ct.Cl. 199, 204 (1973) (Government’s misleading notice of preference-eligible rights and withholding of information concerning plain*1254tiffs right to appeal adverse action entitles plaintiff to adjudication on the merits).
750 F.2d at 943.
* * # * * *
Covington’s appeal should not be prejudiced by the agency’s and the Board’s failure to inform him of his applicable rights as required by statute and regulations. See McCormack v. United States, 204 Ct.Cl. 371, 378 (1974) (Government, after put on notice the plaintiff considered his resignation to be involuntary, must inform plaintiff of all administrative rights attaching to an involuntary resignation).
750 F.2d at 944.
The board admitted in its opinion that Cruz contended before the board that he would not have resigned “if the agency had notified him of his appeal rights.” Therefore, the failure of the agency to advise him that he could appeal an involuntary resignation and the misleading advice it gave him was harmful error that requires reversal of this case. The above cases are binding precedents on this court.
(5) The Discrimination Claim
It is undisputed that there was a claim of reprisal discrimination in the appeal that Cruz filed with the board. Cruz alleged before the agency and before the board that the agency forced him to involuntarily resign from his job as a reprisal against him because he had filed EEO complaints against the agency and its officers. The AJ properly considered the claim and decided it against Cruz. The full board vacated this part of the AJ’s decision, stating:
Since we find that the administrative judge should have made no findings regarding the appellant’s reprisal claims, we need not reach this contention.
This statement, which admits the existence of the claim, and the decision of the AJ, show without question that a claim of reprisal discrimination was a part of Cruz’ appeal to the board. Therefore, the second issue (discrimination) contemplated by § 7702 is present in the case.
(6) The Mandate of 5 U.S.C. § 7702
Since Cruz’ appeal to the board consisted of an appealable action and a claim of reprisal discrimination, the case is in legal parlance a “mixed case.” It falls squarely within the provisions of 5 U.S.C. § 7702. The government contends that it is not a mixed case because it says that reprisal for EEO involvement is not discrimination encompassed within the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, but instead is only a prohibited employment practice under 5 U.S.C. § 2302(b)(9). I disagree. While such reprisal discrimination is a prohibited employment practice, it is also discrimination within the meaning and provisions of the Civil Rights Act. See 42 U.S.C. § 2000e-3; Smith v. Horner, 846 F.2d 1521 (D.C.Cir.1988); Ayon v. Sampson, 547 F.2d 446, 450 (9th Cir.1976). Thus, the reprisal discrimination complaint of Cruz presents a civil rights (Title VII) issue and, along with his appealable action, makes this case a mixed case over which the board had jurisdiction.
The law is clear that once a mixed case (i.e., one involving an appealable action and a discrimination issue) is appealed to the MSPB, the board is required to decide both issues within 120 days. 5 U.S.C. § 7702; 5 C.F.R. § 1201.156; Ballentine v. Merit Sys. Protection Bd., 738 F.2d 1244 (Fed. Cir.1984). The board failed to follow this requirement in the instant case, as it did not decide the discrimination issue. This was error on the part of the board.
Our in banc decision in Williams v. Department of the Army, 715 F.2d 1485 (Fed. Cir.1983) is the law of this circuit on mixed cases involving a discrimination claim. In that case we held that under 5 U.S.C. § 7702 “ ‘mixed’ must be understood as discrimination mixed with an appealable action.” Id. at 1487 n. 3. Also, we held that “cases falling within § 7702 have been termed ‘mixed’.” Id. We stated further that:
An examination of petitioner’s appeal to the MSPB discloses that the petition is founded upon a removal action appeal-able to the board under § 7701 and contains an allegation of prohibited racial *1255discrimination under the Civil Rights Act referenced in § 7702(a)(l)(B)(i). Thus the case is one which falls squarely within § 7702.
715 F.2d Id. at 487-88.
An analogous situation exists in the Cruz case.
We look to the opinion in the controlling Williams case to determine the proper procedure to be followed when a mixed case is filed with the board. When this is done, we find that there we quoted with approval the following holding of the Fifth Circuit in Wiggins v. United States Postal Service, 658 F.2d 219 (1981).
Section 7702 explicitly requires the board in appealable cases alleging both discrimination and nondiscrimination claims to decide both issues. 5 U.S.C. § 7702(a)(1)(B).
715 F.2d at 1488 (emphasis supplied).
We also held in Williams:
Throughout § 7702, the issues of a mixed case are tied together for resolution at the same time. Section 7702(a)(2) requires an “agency” (i.e., not the MSPB) to decide “both the issue of discrimination and the appealable action” within 120 days and “the decision” is judicially reviewable or appealable to the board. Similarly, § 7702(a)(1)(B) requires the Board (i.e., the MSPB) also to decide all issues in the case within 120 days. Moreover, throughout § 7702, the word “decision” is used in referring to the administrative result of the proceeding in a mixed case, and the words “judicially reviewable action,” again in the singular, is used concerning the review which may follow from the decision, whether the decision be that of an agency, the Board, the Equal Employment Opportunity Commission, or a special panel to which a matter may be certified.
715 F.2d at 1489 (emphasis supplied).
The teachings of Williams make it very clear that Cruz is a mixed case and that the board was required to decide both the appealable action and the claim of discrimination. The board did not decide both issues, but instead bifurcated the case and decided only the appealable action which has now been appealed to our court. Again, we look to Williams which holds that a mixed case cannot be bifurcated. There we said:
Thus, we are led to conclude for similar reasons that Congress did not direct or contemplate bifurcated review of any mixed case. Rather, § 7702 reflects the statement in the legislative history:
In such cases, questions of the employee’s inefficiency or misconduct, and discrimination by the employer, will be two sides of the same question and must be considered together.
S.Rep. No. 95-969, 95th Cong., 2d Sess. 53, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2775.
715 F.2d at 1490.
It is clear that the bifurcated issue of the voluntariness of Cruz’ resignation is intertwined with his claim of discrimination which the board has not decided although required to do so by § 7702.
Unless the discrimination issue is decided, Cruz will not be able to present his discrimination claim in any forum, which will be a denial of due process. I do not believe that Congress intended such a result. It is more logical to believe that Congress by enacting the civil rights statutes and the Civil Service Reform Act, and that the President by issuing his message accompanying Reorganization Plan No. 1 of 1978, 3 C.F.R. 321 (1978), reprinted in 5 U.S.C.App. at 1155 (1982), 92 Stat. 3781 (1978), intended to combat job discrimination in all its forms, and that confusing overlap, duplication and bifurcation of cases by boards and courts in discrimination cases would be eliminated.
Section 7702 mandates the board to decide both of the issues in this mixed case. It has no other choice. The board has deliberately ignored this mandate and by doing so has thwarted and contravened the will of Congress. This error should be corrected.
Cruz has filed a motion in this appeal asking the court to transfer the case to an appropriate district court. The case is not judicially reviewable by a district court at *1256this stage of the proceedings, because the board has not decided both the appealable action and the reprisal discrimination issues. We held in Ballentine v. Merit Sys. Protection Bd., supra:
When an appeal has been taken to the M.S.P.B., until the discrimination issue and the appealable action have been decided on the merits by the M.S.P.B., an appellant is granted no rights to a trial de novo in a civil action under § 7702 or § 7703.
738 F.2d at 1246. See also 5 U.S.C. § 7702(a)(3). The motion should be denied.
(7) The Board’s Rejection of the Administrative Judge’s Decision on Discrimination
The AJ decided the issue of discrimination along with decisions on other issues in the case. The board reopened the case on its own motion and rejected the discrimination decision of the AJ without disturbing his decisions on other issues. It is obvious that the case was reopened for this specific purpose. This rejection of the discrimination part of the AJ’s decision was totally unnecessary, because the board was dismissing the case, anyway, and the dismissal included the discrimination issue. When that issue was disposed of by the dismissal, there was no need for the board to do anything more about it. However, the facts indicate that the board wanted to make doubly sure by this stratagem that there would not be a decision on the discrimination issue by the board in this case. This unnecessary and pointed action by the board directed solely to the discrimination issue had the effect of cutting off the rights of Cruz to appeal the issue to a district court or to the EEOC, as there was no decision to appeal from. By this means, the board effectively deprived Cruz of his appeal rights under the civil rights laws and the anti-discrimination statutes enacted by Congress. I would hold that this action by the board was unlawful, arbitrary, capricious and an abuse of discretion, and would set it aside under the provisions of 5 U.S.C. § 7703(c).
(8) Speculative Comments of the Majority on Future Relief For Cruz In Other Fora, Etc.
The majority opinion states, “we do not sit to decide hypothetical,” yet the suggestions it makes as to potential fora available in the future to Cruz for his reprisal or discrimination claim appear to fall squarely in that category. First, the majority says that Cruz can obtain a de novo trial in a district court on his discrimination claim. That is contrary to our decision in Ballen-tine where we held:
Until the discrimination issue and the appealable action have been decided on the merits by the M.S.P.B., an appellant is granted no rights to a trial de novo in a civil action under Section 7702 or Section 7703.
Furthermore, § 7702(a)(3)(A) and (b)(1) provide that any decision of the board on a discrimination issue shall be a judicially reviewable action (i.e. appealable to a district court) as of the date of the issuance of the decision, or appealable to the EEOC within 30 days after notice of the decision. These provisions mean that there can be no appeal to a district court or the EEOC until and unless the board has first decided the issue. Of course, the issue has not been decided by the board in this case. If Cruz attempts to file a new complaint after his present case is terminated here, he would find that it is moot or barred by res judica-ta because it has been litigated in this court. Any new complaint would necessarily have to involve only facts that arose after the instant case has been disposed of by this court, and that would be a new and different case.
Secondly, the majority says that if Cruz filed a complaint with the EEOC, and if the EEOC dismissed the complaint, the EEOC may reopen its proceedings. This is highly speculative and unsupported by any authority except the EEOC case cited by the majority, which is not a precedent for this court as the EEOC is not a court. Besides, such a procedure is contrary to Ballentine and § 7702(a)(3)(A) and (b)(1).
Finally, the majority suggests that Cruz could submit his discrimination claim to the *1257Office of Special Counsel under 5 U.S.C. § 1206(c)(1). This statute was repealed by Public Law 101-12, Section 3(a)(8) on April 10, 1989, 103 Stat. 18. In any event, an appeal to the Office of Special Counsel would be a highly speculative and impractical procedure. The majority has not cited any case that supports this suggestion. The Office of Special Counsel is charged primarily with the duty of investigating and prosecuting government employees who are charged with prohibited personnel practices.
Under the facts and applicable law, Cruz’ discrimination complaint can only be considered and decided by the board, and the board’s obligation to do so can only be enforced by this court. At the present stage of the proceedings, it is the duty of this court to enforce this obligation of the board.
During this appeal the court, on motion of the respondent, struck and excluded certain material from the record in this case. Nevertheless, the majority has commented on this excluded material in footnote 5 by saying, “Cruz improperly includes [present tense] in the appendix ... documents related to an EEOC complaint he filed in February 1988 and twice amended in March, 1988. ... those documents are [present tense] irrelevant ... they were excluded from the appendix and we have necessarily ignored them.” The majority does not state by what authority it is able to comment on documents not in the record. Neither does it explain how it can assert that those documents are not relevant and at the same time say that they have been ignored by the majority. If the purpose of the majority in commenting on this excluded material is to raise a question whether Cruz has an appeal pending before the EEOC at the present time that involves the issues in this case, the question is easily answered. A careful and detailed search of the record shows that there is no evidence whatever that Cruz has a case of any kind pending before the EEOC at the present time.
(9) Conclusion
I would set aside the board’s decision rejecting the discrimination decision of the AJ, and I would remand the case with instructions to the board to treat this case as a mixed case within the meaning of 5 U.S.C. § 7702, and to decide both the ap-pealable action of involuntary resignation, and the discrimination issue as required by that statute, and to notify Cruz that he could appeal the case to the EEOC within 30 days or to a district court if he has not previously filed a petition with the EEOC. This would afford Cruz his due process rights, and the requirements of the civil rights and anti-discrimination laws would be complied with.