Before Rich, Circuit Judge, Friedman, Senior Circuit Judge, and Lourie, Circuit Judge.
The opinion of the court was delivered by: Friedman, Senior Circuit Judge
Appealed from: Merit Systems Protection Board
The only question we decide is whether the Merit Systems Protection Board ("Board") correctly dismissed for lack of jurisdiction the petitioner's appeal challenging his removal by the Department of the Navy. The answer, as we explain, turns on whether in rescinding a prior removal the Navy had returned the petitioner to the status quo ante. We hold that the Navy had not restored him to the status quo ante and that the Board therefore erred in dismissing the appeal for lack of jurisdiction. We reverse that decision and remand to the Board for further proceedings consistent with this opinion.
The underlying facts, as set forth in the Board's decision and as supplemented by additional material in the record, are undisputed.
The petitioner Jarman worked as an electrician for the Navy in a position that was subject to random drug testing. After Jarman tested positive for marijuana in January 1995 (the first test), the Navy in February 1995, proposed to remove him. In March 1995, Jarman and the Navy entered into a "Last Chance Agreement" under which:
1. Jarman would be suspended for 21 days in lieu of removal.
2. Jarman would be on probation for two years "whereby removal may be initiated anytime for any future misconduct or performance problems."
3. Jarman agreed to various rehabilitation actions and to "be subject[ed] to random urinalysis" at least twice monthly.
4. Jarman further agreed that "[a]ny alcohol or drug related offense will be considered just cause for [his] immediate removal." Jarman was required to "demonstrate conduct becoming a government employee at all times," and "[a]ny violation of this requirement will be considered just and sufficient cause for [his] immediate removal."
5. Jarman and his union also "voluntar[ily] agree[d] to waiver, during the agreed upon probationary period, [of] all appeal rights to a civil action, the Merit Systems Protection Board, the Negotiated Grievance Procedure and any other administrative forum arising out of his proposed removal and/or this decision, and any action taken during the probationary period for misconduct/performance and/or failure to comply with the terms of this agreement."
In June 1995 Jarman tested positive for methamphetamine (the second test) and on August 23, 1995 the agency again proposed his removal. Jarman was removed effective September 30, 1995 and he appealed that action to the Board.
In the interim, on August 1, 1995, Jarman tested positive for marijuana (the third test). The agency took no immediate action based on that test, apparently because when it received the results it was processing the August 23 proposed removal.
In a March 1996 report that Jarman submitted to the Navy, a testing laboratory reported that the urine sample involved in the June ...