shaw bransford & roth case law update

Court of Appeals: No Jurisdiction over Board Decision without Final Order

A firefighter at the Department of the Navy petitioned the United States Court of Appeals for the Federal Circuit for review after the Merit Systems Protection Board ordered the Agency to determine if and when the employee would have been removed had he not retired before settling on what relief to grant him in the successful appeal of his involuntary retirement.

In 2011, the Navy revoked the employee’s security clearance because of concerns about financial delinquency and ongoing debt. After the revocation of the employee’s clearance, the Navy initiated removal proceedings, and issued the employee a notice of proposed removal on March 28, 2012. The employee contested the proposed removal, but the Deciding Official wrote up a decision to remove him on July 13, 2012, with an effective date of July 13, 2012. The letter was signed and given to the District Fire Chief to deliver to the employee. But instead of delivering the letter, the District Fire Chief gave the employee the choice to retire before receipt of the letter, in lieu of termination. The employee expressed concern that his retirement benefits would be jeopardized if he was fired, and ultimately chose to retire effective the same day, July 13, 2012, instead of receiving the letter sustaining his termination.

When the employee learned later that his retirement benefits would not have been effected by his removal, the employee filed an appeal with the MSPB, alleging that his retirement had been involuntary. After the MSPB administrative judge dismissed the employee’s appeal, the Board reversed that dismissal and remanded the case back to the administrative judge, holding that the employee’s allegations (that an agency manager had told him he would lose his retirement benefits if he was terminated) were sufficient to call for a jurisdictional hearing.  

On remand, the administrative judge conducted a hearing, and ultimately held that the employee’s retirement was involuntary since the employee had vocalized his concern that his retirement benefits would be effected if he was removed rather than if he retired, and that the District Fire Chief had failed to either correct that misinformation or direct the employee to a knowledgeable person who could help the employee make an informed choice.

The administrative judge ruled that the employee was entitled to be returned to the “status quo ante,” a legal term for the previously existing state of affairs, prior to the involuntary retirement. The administrative judge also noted that “further consideration of the status quo ante is warranted under the circumstances of this case,” given that the employee involuntarily retired “immediately preceding the issuance of a decision letter removing him effective that day.”

The Agency appealed the decision to the Board, which affirmed the administrative judge’s finding that the employee involuntarily retired. However, the Board modified the administrative judge’s decision by explaining that “status quo ante relief requires that the agency first determine if and when the [employee] would have been removed had he not retired…If, as suggested by the unissued decision letter in the record, the agency would have removed [the employee] effective July 13, 2012, then [his] retirement effective that date would not be cancelled [and the employee] would not be entitled to reinstatement or any back pay based on the involuntary retirement action at issue in this appeal.” The Board also found that if the Agency determined the employee would have been removed later than July 13, 2012, the appropriate relief would be to restore the employee with appropriate back pay and other benefits from July 13, 2012, to the date he would otherwise have been removed.

The employee petitioned the United States Court of Appeals for the Federal Circuit for review of the Board’s decision, arguing that the Board improperly “permitted the Navy to reconstruct what would have happened if his involuntary retirement had not occurred, and that he is entitled to back pay from July 13, 2012, to the mandatory retirement date (due to age) for firefighters. The appeals court noted that its jurisdiction over petitions for review of MSPB orders derives from 28 U.S.C. § 1295(a)(9), which provides that the appeals court shall have exclusive jurisdiction of an appeal “from a final order or final decision” of the Board.

The appeals court noted that orders remanding a matter to an administrative agency for further findings and proceedings is not final. The order is treated as a remand, rather than a final order, when the order “contemplates further adjudication or other proceedings beyond the ministerial implementation of the [Board’s] directive.”

Because the Board did not “dispose of the entire action,” and instead instructed the agency to make further determinations with varying outcomes based on the agency’s findings, the appeals court found that the “board’s ruling was not a final order or decision, and [the appeals court lacked] jurisdiction over the petition for review.

For the above stated reasons, the United States Court of Appeals for the Federal Circuit dismissed the employee’s petition for review without reaching the merits.

Read the full case: Morrison v. Department of the Navy.

This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update

Tags: Navy



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