JOHN W. MORRISON, Petitioner
DEPARTMENT OF THE NAVY, Respondent
for review of the Merit Systems Protection Board in No.
Michael Kator, Kator Parks Weiser & Harris, PLLC,
Washington, DC, argued for petitioner. Also represented by
Daniel R. Clark; Jeremy Wright, Austin, TX.
Burbank, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent. Also represented by Chad A. Readler, Robert E.
Kirschman, Jr., Allison Kidd-Miller.
Newman, Clevenger, and Bryson, Circuit Judges.
Morrison petitions for review of a decision of the Merit
Systems Protection Board ("MSPB" or
"Board") relating to his retirement from a civilian
position with the Department of the Navy. Because the
Board's ruling was not a "final order" or a
"final decision" in his case, we dismiss Mr.
Morrison's petition for lack of jurisdiction. 28 U.S.C.
§ 1295(a)(9); see also 5 U.S.C. §
Morrison worked as a firefighter at the Naval Submarine Base
New London in Groton, Connecticut. Mr. Morrison's
position was designated as "Non-Critical
Sensitive." As a condition of his employment, he was
required to maintain a security clearance. In August 2011,
the Navy revoked Mr. Morrison's eligibility for a
security clearance, citing concerns regarding his personal
finances. Mr. Morrison appealed the revocation to the
Navy's Personnel Security Appeals Board. The revocation
was upheld based on Mr. Morrison's history of financial
delinquency and his continued debt of more than $36, 000.
Navy subsequently initiated removal proceedings for Mr.
Morrison. It issued him a notice of proposed removal on March
28, 2012, based on his failure to maintain the requisite
security clearance. Mr. Morrison protested the proposed
removal, but on July 13, 2012, Regional Fire Chief Stephan
Cox wrote a letter finalizing the decision to remove him. In
the letter, Regional Fire Chief Cox wrote: "I . . . find
that the charge of 'Denied Eligibility to Access
Non-Critical Sensitive Areas' is fully supported by the
evidence and your removal is warranted and will be effected
on 13 July 2012."
Regional Fire Chief Cox signed the letter, it was not
formally issued to Mr. Morrison at that time. Instead,
District Fire Chief Thomas Clapsadle, who was to deliver the
letter of decision, offered Mr. Morrison the option to retire
preemptively, in lieu of the termination. Mr. Morrison had
expressed concern that his retirement benefits would be
jeopardized if he were fired, and he chose to retire
effective as of July 13, 2012.
reality, Mr. Morrison's retirement benefits were never at
risk due to his pending termination, as he would have
received his retirement benefits regardless of whether he
retired or was terminated. See 5 U.S.C. §§
8312-8315 (identifying particular circumstances, not present
here, in which a government employee may lose entitlement to
retirement pay). After learning that his retirement benefits
were not at risk, Mr. Morrison filed an appeal with the Merit
Systems Protection Board, claiming that his retirement was
involuntary, and thus he had, in effect, been unlawfully
removed from his position.
administrative judge who was assigned to the case initially
dismissed Mr. Morrison's appeal for lack of jurisdiction
on the ground that he had failed to make a non-frivolous
showing that his retirement was involuntary. On Mr.
Morrison's petition for review, the full Board held that
Mr. Morrison's allegations that an agency manager had
told him he would lose his retirement benefits if he were
terminated were sufficient to call for a jurisdictional
hearing. The Board therefore remanded the case to the
administrative judge for that purpose.
remand, the administrative judge conducted a hearing and
determined that Mr. Morrison's retirement was
involuntary. The administrative judge found that Mr. Morrison
had entertained the belief that he would lose his retirement
benefits if he were removed, and that District Fire Chief
Clapsadle had not corrected that misinformation or referred
Mr. Morrison to a knowledgeable person who could correct that
misinformation so that Mr. Morrison could make an informed
choice concerning his retirement. Based on those findings,
the administrative judge concluded that Mr. Morrison
"did not make an informed choice when he chose to retire
based on the mistaken assumption that he would lose his
retirement benefits if he was issued a letter of termination,
which the agency failed to correct."
administrative judge ruled that Mr. Morrison was entitled to
be returned to the status quo ante: reinstatement as of July
13, 2012. The administrative judge added, however, that
"further consideration of the status quo ante is
warranted under the circumstances of this case." The
administrative judge noted that Mr. Morrison involuntarily
resigned "immediately preceding the issuance of a
decision letter removing him effective that day, " and
concluded that, although Mr. Morrison should be restored to
the status quo ...