Cooper v. Department of the Navy, 96-3142

• Decision Date: 05 March 1997
• Docket Number: No. 96-3142,96-3142
• Citation: 108 F.3d 324
• Parties: Larry L. COOPER, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 324

108 F.3d 324

20 A.D.D. 636

Larry L. COOPER, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.

No. 96-3142.

United States Court of Appeals Federal Circuit.

March 5, 1997.

Rehearing Denied April 2, 1997.

A. Patricia Frohman, Washington, D.C., argued, for petitioner.

Paul S. Padda, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for respondent. On the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Assistant Director, and Alfred S. Irving, Jr., Attorney.

Before RICH, SCHALL, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

This case raises the question whether it was proper for the Merit Systems Protection Board to dismiss an employee's appeal from his removal when the agency canceled the removal after the employee retired. Because we agree with the decision of the Board dismissing the employee's appeal as moot, we affirm the Board's order.

I

On April 1, 1991, the Navy removed petitioner Larry L. Cooper from his position as a warehouse worker foreman because of his inability to perform the duties of the position. Cooper filed a timely appeal of his removal with the Board. After his first three appeals were dismissed without prejudice, Cooper filed a fourth appeal. In the meantime, Cooper applied for disability retirement benefits, and his application was approved.

On March 2, 1993, an administrative judge issued an initial decision dismissing Cooper's appeal. The administrative judge ruled that Cooper's disability retirement application was retroactive to a date prior to his removal and that the appeal of the removal was therefore moot. When Cooper petitioned for review of the administrative judge's decision, the full Board reversed and remanded the case to the administrative judge for further proceedings. The Board held that as long as the removal was effected prior to OPM's grant of disability retirement, the Board had jurisdiction to hear the appeal, regardless of the effective date of the retirement.

After that decision, the Navy rescinded Cooper's removal and eliminated all references to the removal from his official personnel file. The Navy substituted a separation based on disability retirement for the removal action. Because the removal was rescinded, the Board dismissed Cooper's appeal as moot. That decision became final on May 18, 1995.

On June 16, 1995, Cooper filed a complaint against the Navy and the Board in the United States District Court for the Southern District of California. In his complaint, Cooper raised four claims. His first claim sought to appeal the decision of the Board dismissing his removal appeal as moot. Cooper's second and third claims alleged that the Navy had discriminated against him in various ways based on handicap and race. His fourth claim was that the Navy had retaliated against him on account of his "actions taken toward revealing and correcting gross mismanagement, waste of funds, and abuse of authority." Pursuant to 28 U.S.C. § 1631, the district court transferred the case to this court for review of the Board's decision.

II

The parties agree that the Board initially had jurisdiction over Cooper's appeal of the Navy's action removing him for unacceptable performance. See 5 U.S.C. § 4303(e); 5 C.F.R. § 1201.3(a)(1). The dispute in this case centers on the effect of the Navy's rescission of Cooper's removal after OPM granted Cooper's retirement application.

If an appealable action is canceled or rescinded by an agency, any appeal from that action becomes moot. In this case, Cooper alleges that it was improper for the Board to dismiss his appeal as moot, because the rescission of the removal action did not return him to his former position. We uphold the Board's ruling. 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. After the Navy took those actions, there was no longer any removal or other adverse action for Cooper to appeal. Compare Bruning v. Veterans Admin., 834 F.2d 1019, 1021 (Fed.Cir.1987) (employee's appeal not rendered moot if agency's rescission of removal action is incomplete or leaves another adverse action in place).

Cooper argues that to hold his appeal moot would permit an agency to avoid review of a removal action by pursuing the following course: removing the employee, waiting for the employee to file for retirement benefits, rescinding the removal when the retirement application is approved, and then moving to dismiss the employee's appeal from his removal on mootness grounds. The flaw in that argument is that an employee who believes that he has been effectively removed from his position by being improperly coerced or induced to retire can argue that his retirement was involuntary. The Board has jurisdiction over an involuntary retirement, which is treated as if it were a removal. See Staats v....