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Graham v. Department of Treasury

January 28, 1999


Before Newman, Lourie, and Schall, Circuit Judges.

The opinion of the court was delivered by: Schall, Circuit Judge.


Reginald Graham petitions for review of the final decision of the Merit Systems Protection Board (Board) dismissing for lack of jurisdiction his appeal of the decision by the Department of the Treasury (agency) to remove him from his position. Graham v. Department of the Treasury, 79 M.S.P.R. 256 (M.S.P.B. Mar. 12, 1998) (Table, No. DC-0752-97-0473-I-1). We affirm.



Mr. Graham worked as an Employee Development Specialist, GS-0235- 12, with the agency's Bureau of Engraving and Printing. By notice dated February 7, 1997, he was informed that the agency proposed his removal for improper conduct. Specifically, the agency charged that he had violated standards of conduct and regulations by failing to timely file federal and state income tax returns and by failing to timely pay federal and state income taxes between 1981 and 1991. On March 21, 1997, Mr. Graham was told that the decision had been made to remove him and that the removal would be effective on March 28th. On March 28th, Mr. Graham completed a Standard Form 50 requesting "Early Out Retirement" effective that day. As stated on the form, the reason for the request was "to obtain retirement benefits." In due course, the Office of Personnel Management (OPM) approved the request, and Mr. Graham currently is in retirement status. On April 3, 1997, he appealed the agency's decision to remove him to the Board.

Mr. Graham had the burden of establishing the Board's jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2)(i) (1997). In asserting Board jurisdiction, he advanced two alternate arguments: first, that his appeal of the agency's removal decision was not rendered moot by his retirement; and second, that his retirement was involuntary and therefore a constructive removal. In a July 30, 1997 initial decision, the administrative Judge (AJ) rejected both arguments, concluding that Mr. Graham's retirement did moot his appeal and that the retirement was not involuntary. Accordingly, he dismissed the appeal for lack of jurisdiction. The AJ's initial decision became the final decision of the Board on March 12, 1998, when the Board denied Mr. Graham's petition for review for failure to meet the criteria for review set forth in 5 C.F.R. § 1201.115. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).


Our review of the Board's decision is limited. Specifically, we must affirm the decision unless it is (1) arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. See 5 U.S.C. § 7703(c); Rosete v. Office of Personnel Management, 48 F.3d 514, 516 (Fed. Cir. 1995).


Mr. Graham's first argument on appeal is that the Board erred in determining that his retirement mooted his appeal. Pursuant to 5 U.S.C. §§ 7512 and 7513(d), the Board has authority to hear appeals of agency removal actions and of four other specified types of adverse actions. However, if an agency cancels or rescinds an otherwise appealable action, the Board is without jurisdiction to hear an appeal from the action. Cooper v. Department of the Navy, 108 F.3d 324, 326 (Fed. Cir. 1997).

In holding that Mr. Graham's appeal was rendered moot by his retirement, the AJ relied on our decision in Cooper. In that case, the Navy removed Larry L. Cooper from his position as a warehouse worker foreman because of his inability to perform the duties of his position. Cooper timely appealed his removal to the Board. Subsequently, while the appeal was pending before the Board, Cooper applied for disability retirement benefits and the application was approved. Thereafter, the Navy rescinded the removal, eliminated all references to it from Cooper's official personnel file, and substituted for it a separation based on disability retirement. See Cooper, 108 F.3d at 325. In view of the Navy's action, the Board dismissed Cooper's appeal for lack of jurisdiction, on the ground that it was moot. See id. On appeal, we upheld the Board's ruling. In so doing, we stated, "The Navy's cancellation of the removal action and the removal of all references to that action from Cooper's official personnel file eliminated all the consequences of that action and thus rendered Cooper's appeal moot." Id. at 326.

Mr. Graham advances two arguments as to why Cooper does not control his case. First, he points out that he has not received any communication from the agency formally stating that his removal was rescinded. Accordingly, he argues, the record does not establish that, in fact, the removal has been rescinded, as was the case in Cooper. In response, the government acknowledges that the agency failed to provide Mr. Graham with a written statement memorializing the rescission of the decision to remove him. It states, however, that the removal was "effectively canceled." It notes that as soon as Mr. Graham requested Early Out Retirement, the agency took no further action on the removal. It also notes that OPM could not have approved Mr. Graham's request for early retirement if the agency had removed him. See 5 U.S.C. § 8336(d) (1994) (stating that an employee who is separated from government service involuntarily "by removal for cause on charges of misconduct or delinquency" is prohibited from receiving retirement benefits).

The record establishes that the agency has in fact canceled the decision to remove Mr. Graham, even though it has not expressly informed Mr. Graham of the cancellation, either orally or in writing. We thus view the sequence of events in this case as resulting in circumstances tantamount to the cancellation of the removal action in Cooper. Having said that, we think that the better course plainly would have been for the agency to have provided Mr. Graham with a statement in ...

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