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Morrison v. Department of Navy

United States Court of Appeals, Federal Circuit

November 29, 2017

JOHN W. MORRISON, Petitioner
v.
DEPARTMENT OF THE NAVY, Respondent

         Petition for review of the Merit Systems Protection Board in No. PH-0752-14-0669-B-1.

          Michael Kator, Kator Parks Weiser & Harris, PLLC, Washington, DC, argued for petitioner. Also represented by Daniel R. Clark; Jeremy Wright, Austin, TX.

          Renee 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.

          Before Newman, Clevenger, and Bryson, Circuit Judges.

          PER CURIAM

         John W. 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. § 7703(b)(1)(A).

         Background

         Mr. 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.

         The 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."

         Although 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.

         In 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.

         The 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.

         On 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."

         The 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 ...


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