United States Court of Appeals
for the Federal Circuit
______________________
JOHN W. MORRISON,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2016-2542
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-14-0669-B-1.
______________________
Decided: November 29, 2017
______________________
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, Washing-
ton, DC, argued for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
Before NEWMAN, CLEVENGER, and BRYSON, Circuit Judges.
2 MORRISON v. DEP’T OF THE NAVY
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 main-
tain the requisite security clearance. Mr. Morrison pro-
tested 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
MORRISON v. DEP’T OF THE NAVY 3
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 involun-
tary. 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 bene-
fits 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 knowledge-
able person who could correct that misinformation so that
Mr. Morrison could make an informed choice concerning
his retirement. Based on those findings, the administra-
tive judge concluded that Mr. Morrison “did not make an
4 MORRISON v. DEP’T OF THE NAVY
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: reinstate-
ment 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 issu-
ance of a decision letter removing him effective that day,”
and concluded that, although Mr. Morrison should be
restored to the status quo ante, he “cannot be placed in a
better position than he would have enjoyed if he had not
resigned on July 13, 2012.”
The Navy petitioned for review by the full Board,
which affirmed the administrative judge’s decision re-
garding Mr. Morrison’s involuntary retirement. As to
that issue, the Board ruled that “an agency is required to
provide employees with adequate information in order to
make an informed retirement decision.” Applying that
standard, the Board found no reason to disturb the ad-
ministrative judge’s determination that Mr. Morrison’s
retirement was involuntary.
With regard to the remedy, however, the Board modi-
fied the administrative judge’s decision “to clarify how the
facts of this case may affect the status quo ante relief.”
The Board explained that “status quo ante relief requires
that the agency first determine if and when the appellant
would have been removed had he not retired. . . . If, as
suggested by the unissued decision letter in the record,
the agency would have removed [Mr. Morrison] effective
July 13, 2012, then [his] retirement effective that date
would not be cancelled [and Mr. Morrison] would not be
entitled to reinstatement or any back pay based on the
MORRISON v. DEP’T OF THE NAVY 5
involuntary retirement action at issue in this appeal . . . .”
The Board added that if Mr. Morrison “would not have
been removed, or the effective date of the removal would
have occurred after July 13, 2012, then the appropriate
relief in this appeal would be to cancel the involuntary
retirement, restore him with appropriate back pay and
other benefits from July 13, 2012, until the date he
otherwise would have separated from service by either a
removal action or the mandatory retirement age, and to
adjust his retirement annuity accordingly, i.e., potentially
a later retirement date.” 1
Mr. Morrison petitions this court for review of the
Board’s decision. He argues that the Board improperly
permitted the Navy to reconstruct what would have
happened if his involuntary retirement had not occurred.
Instead, he contends that he is entitled to back pay as a
matter of law for the period between July 13, 2012, and
the date of his mandatory retirement in June 2014.
DISCUSSION
Our jurisdiction over petitions for review of orders of
the Merit Systems Protection Board appeals derives from
28 U.S.C. § 1295(a)(9). That statute provides that this
court shall have exclusive jurisdiction of an appeal “from
a final order or final decision” of the Board. See also 5
U.S.C. § 7703(b)(1)(A) (“[A] petition to review a final order
1 Although not part of the record in this case, the
parties have informed us that the Navy subsequently
found that Mr. Morrison would have been terminated as
of July 13, 2012, and took the steps necessary to complete
the removal action. The Navy therefore did not award
Mr. Morrison any back pay. Mr. Morrison has filed a
separate appeal from that action to the Board. That
appeal was dismissed without prejudice pending the
outcome of this proceeding.
6 MORRISON v. DEP’T OF THE NAVY
or final decision of the Board shall be filed in the United
States Court of Appeals for the Federal Circuit.”). Our
jurisdiction over a petition therefore turns on whether the
determination that the petitioner seeks to appeal “consti-
tutes a ‘final order or final decision’ for purposes of section
1295(a)(9).” Weed v. Soc. Sec. Admin., 571 F.3d 1359,
1361 (Fed. Cir. 2009) (quoting Haines v. Merit Sys. Prot.
Bd., 44 F.3d 998, 1000 (Fed. Cir. 1995)).
The statutory requirement that we limit our review to
“final” orders and decisions of the Board parallels the
familiar “final judgment rule” in appellate proceedings,
which is aimed at curbing “piecemeal appellate review of
trial court decisions which do not terminate the litiga-
tion.” United States v. Hollywood Motor Car Co., 458 U.S.
263, 265 (1982). As a general rule, an order is final only
when it “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U.S. 229, 233 (1945).
The same policy underlies the principle that “an order
remanding a matter to an administrative agency for
further findings and proceedings is not final.” Cabot
Corp. v. United States, 788 F.2d 1539, 1542 (Fed. Cir.
1986); see also Caesar v. West, 195 F.3d 1373, 1374 (Fed.
Cir. 1999) (“Remands to administrative agencies, because
they mark a continuation of the case, are not generally
considered final decisions for jurisdictional purposes.”);
see generally 15B Charles A. Wright et al., Federal Prac-
tice and Procedure § 3914.32, at 237-38 (2d ed. 2006)
(“The general rule is that a remand is not appealable as a
final decision . . . . Since the remand is not final, it can be
reviewed on appeal from the eventual final disposi-
tion . . . .”).
In determining whether an agency has remanded the
case for further proceedings, we look to whether the
agency has required further administrative adjudication;
we do not base our decision on whether the agency has
MORRISON v. DEP’T OF THE NAVY 7
formally denominated its action as a “remand.” If the
agency’s order contemplates further adjudication or other
proceedings beyond the ministerial implementation of the
agency’s directive, the order will be treated as a remand.
See Weed, 571 F.3d at 1362 (dismissing appeal for lack of
jurisdiction where the Board’s decision was “in essence[] a
remand” because it forwarded the petition to the Board’s
regional office for “further adjudication” and ordered the
Social Security Administration to reconstruct the hiring
process for the position for which the petitioner had
applied); Cummings v. Office of Pers. Mgmt., 500 F. App’x
941, 944 (Fed. Cir. 2013) (“While the MSPB’s decision
does not explicitly remand the case to [the agency], in
substance, it acts as a remand for further adjudication
regarding Mr. Cummings’ total years of service. . . .
Given that proceedings continue in [the agency], the
MSPB’s decision was not ‘final’ because it failed to dispose
of the ‘entire action.’ We therefore lack jurisdiction over
Mr. Cummings’ appeal at this time.” (internal citation
omitted)). 2
Although the Board concluded that Mr. Morrison’s
retirement was involuntary and that he should be re-
turned to the status quo ante, the Board did not “dispos[e]
of [the] entire action.” Haines, 44 F.3d at 1000. Rather,
the Board stated that, to ascertain the appropriate relief,
2 Mr. Morrison argues that the Board’s order was
final because the Board denominated its decision as its
“final order.” The Board’s characterization of its order
does not, however, govern our jurisdiction under our
jurisdictional statutes. In the Weed case, for example, the
Board characterized its order as a “final decision,” see
Weed v. Soc. Sec. Admin., 107 M.S.P.R. 142, 149 (2007),
but we nonetheless held that the Board’s action was not
final for purposes of our jurisdiction, Weed, 571 F.3d at
1361.
8 MORRISON v. DEP’T OF THE NAVY
“the agency [must] first determine if and when [Mr.
Morrison] would have been removed had he not retired.”
The Board then outlined various potential outcomes,
depending on how the Navy ultimately decided that
question. Because it is not the case that the Board’s
decision left “nothing for the [agency] to do but execute
judgment,” the Board’s ruling was not a final order or
decision, and we lack jurisdiction over the petition for
review. See Cabot, 788 F.2d at 1543 (an order seeking
“additional findings, determination, and redetermination”
from the agency is not final for purposes of appellate
review); see also Gingery v. Dep’t of Def., 392 F. App’x 855,
856 (Fed. Cir. 2010) (“[A] Board decision directing an
agency to reconstruct the hiring process does not qualify
as a final judgment for purposes of invoking our jurisdic-
tion.”); Marshall v. Dep’t of Health & Human Servs., 587
F.3d 1310, 1315 (Fed. Cir. 2009) (“Mr. Marshall could not
have appealed the MSPB’s first reconstruction order
[because] . . . ‘an order remanding a matter to an adminis-
trative agency for further findings and proceedings is not
final.’” (quoting Cabot, 788 F.2d at 1542)).
Mr. Morrison argues that the Board merely sent this
case back to the Navy to implement and comply with the
Board’s decision, not to conduct any further proceedings.
We disagree. As the Board’s opinion makes clear, the
Board required the Navy to decide, in the first instance,
whether and when Mr. Morrison would have been termi-
nated if he had not retired. That was the critical modifi-
cation that the Board made to the initial decision, in
which the administrative judge had ruled that Mr. Morri-
son “would have been separated effective July 13, 2012.”
The Board directed that such a determination had to be
made by the agency. 3 As such, the Board’s decision was
3 Mr. Morrison suggests that on remand the agency
was virtually certain to decide that he would have been
MORRISON v. DEP’T OF THE NAVY 9
not final for purposes of 28 U.S.C. § 1295(a)(9), and we
therefore dismiss the petition without reaching the mer-
its.
No costs.
DISMISSED
removed as of July 13, 2012, and that subsequent events
have proved that to be true. But our jurisdiction cannot
turn on a party’s estimate of the probability of losing on
remand. And the fact that there has been a decision by
the agency on remand, which has been appealed to the
Board, is a further indication that it is not this appeal,
but the subsequent one, which includes the full record of
the remand proceedings, that is the proper vehicle for
determining whether Mr. Morrison is entitled to back pay
for any or all of the period between July 13, 2012, and his
mandatory retirement date in June 2014.