       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                ROGER HOLLEMAN,
                    Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2015-3108
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DC-0752-14-0629-I-1.
                ______________________

               Decided: October 7, 2015
               ______________________

   ROGER HOLLEMAN, Kannapolis, NC, pro se.

    CALVIN M. MORROW, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
                 ______________________

    Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
                     Judges.
2                                        HOLLEMAN   v. MSPB



PER CURIAM.
    Roger Holleman (“Holleman”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) dismissing his appeal from the United States
Postal Service’s (“the agency”) removal decision as moot
after the agency rescinded its removal action. Holleman
v. United States Postal Serv., No. DC-0752-14-0629-I-1,
2015 MSPB LEXIS 850 (Feb. 2, 2015) (“Final Decision”).
Because we agree with the Board’s determination that the
removal appeal is moot, we affirm.
                      BACKGROUND
    Holleman began working for the Postal Service on Oc-
tober 29, 1994, and was employed as a city carrier at the
Concord Post Office in Concord, North Carolina. On
January 17, 2010, Holleman was arrested on criminal
charges, including several felonies. Final Decision, 2015
MSPB LEXIS 850, at *1. After the agency received notice
of the arrest from its Inspection Service, agency officials
met with Holleman and several witnesses. Id. The
agency subsequently issued a notice of proposed indefinite
suspension and placed Holleman in an off-duty with pay
status. Respondent’s Appendix (“R.A.”) 13. Holleman
responded to the agency’s notice.
     By letter dated March 24, 2010, the agency placed
Holleman on indefinite suspension pending resolution of
the criminal charges against him.       In that letter, the
agency explained the background facts giving rise to the
suspension, including that Holleman was arrested for
taking indecent liberties with a child, intimidating a
witness, and sexual battery. Id. The agency also ex-
plained that it had considered Holleman’s responses to
the proposed suspension, but found that they were insuf-
ficient to warrant mitigating the action proposed. Specifi-
cally, the agency stated that “[e]mployees that are
charged with felonious crimes, especially crimes against
children, cannot be allowed to remain on duty at the
HOLLEMAN   v. MSPB                                         3



Postal Service.” R.A. 14. Finally, the agency explained
that Holleman would be suspended in non-pay, non-duty
status until the charges against him were adjudicated.
R.A. 15-16. Though the letter notified Holleman of his
right to appeal his indefinite suspension to the Board, it is
undisputed that he declined to do so.
     On October 22, 2013, Holleman was convicted of felo-
ny offenses and sentenced to a lengthy incarceration term
with a projected release date in 2026. R.A. 17. In Febru-
ary 2014, the agency issued a notice proposing to remove
Holleman from the Postal Service on charges of:
(1) continuous absence without official leave; and
(2) failure to follow instructions. R.A. 19. By letter dated
April 3, 2014, the agency removed Holleman based on his
unavailability for work beginning on June 21, 2013 and
his failure to follow instructions “to provide acceptable
documentation regarding [his] incapacity from duty
during that period.” R.A. 19. In that letter, the agency
explained that it had considered several factors in reach-
ing its decision, including Holleman’s “years of service
and overall performance record in light of the proposed
charges.” R.A. 21.
    Holleman appealed the removal decision to the Board
on April 21, 2014. In his appeal, Holleman explained that
his absence from work was due to the agency’s decision to
place him on leave without pay. R.A. 23. Holleman
further indicated that he was unable perform his duties
because the agency barred him from entering postal
property. Id. According to Holleman, courts dismissed
the charges against him involving his stepdaughter, and
he had only one remaining charge against him. Id.
Holleman also argued that he was treated more harshly
than other Postal Service employees charged with similar
offenses. Holleman requested back pay from the begin-
ning of his suspension until March 2013, which was when
he alleged that the charges against him were dismissed.
R.A. 26.
4                                         HOLLEMAN   v. MSPB



    On May 9, 2014, the agency sent Holleman a letter
rescinding its removal decision. Therein, the agency
explained that it was not returning Holleman to work, but
was instead putting him “in the status quo ante, that is, in
the same position [he] was in . . . i.e., indefinite suspen-
sion.” Final Decision, 2015 MSPB LEXIS 850, at *2. The
agency subsequently moved to dismiss Holleman’s appeal
to the Board as moot.
     The administrative judge (“AJ”) issued an order to
show cause with respect to mootness. In particular, the
order directed the agency to submit the requisite evidence
and argument showing that it had provided Holleman all
of the relief “he could have received if the matter had been
adjudicated and he had prevailed.” R.A. 32. It also
directed Holleman to respond by setting forth with speci-
ficity what relief he believed he was entitled to receive.
    In its response, the agency argued that Holleman re-
ceived all of the relief he could have obtained because the
rescission placed him in the same position he was in prior
to receiving the notice of removal. The agency also argued
that Holleman was not eligible for back pay because it
was his own criminal misconduct that made him unavail-
able for work. R.A. 36. And, because Holleman was
incarcerated in 2013 with a projected release date in
2026, he “will continue to not be ready, willing and able to
work.” Id.
    Holleman responded that all of the charges against
him that gave rise to his indefinite suspension and re-
moval were “dismissed by the courts of North Carolina.”
R.A. 37. He also stated that he was treated unfairly
because there were other carriers with the Postal Service
who were convicted sex offenders, but were allowed to
remain on the job. Because he was not convicted on
criminal charges until October 2013, Holleman asserted
that he was entitled to back pay from March 23, 2010
until October 23, 2013. R.A. 38. In a separate response,
HOLLEMAN   v. MSPB                                         5



Holleman stated that “all the charges that agency re-
moved me under, were dismissed or dropped by the North
Carolina court system.” R.A. 41. In particular, Holleman
alleged that the witness intimidation charge was dropped
in 2014. Although Holleman acknowledged that he was
convicted on other charges “not related to [his] removal
charges,” he reiterated that, prior to his conviction and
incarceration, he was willing and ready to come back to
work. R.A. 42.
    On February 2, 2015, the AJ issued an initial decision
dismissing Holleman’s appeal as moot. First, the AJ
found that Holleman was “responsible for the actions
which led to his arrest, indefinite suspension, and ulti-
mate incarceration, not the agency.” Final Decision, 2015
MSPB LEXIS 850, at *6. The AJ further found it irrele-
vant that Holleman “may have been exonerated of two of
the three charges which served as the basis for the agen-
cy’s indefinite suspension,” because he was convicted of a
crime in October 2013, and remains incarcerated. Id.
And, because Holleman was incarcerated by the effective
date of his removal—April 3, 2014—he was not entitled to
back pay. Id. at *7. In particular, the AJ explained that,
due to his criminal misconduct and incarceration, Hol-
leman could not satisfy the requirement for back pay that
he be ready and able to work. Id. Because Holleman “has
no further cognizable interest in the outcome of the ap-
peal,” the AJ dismissed it as moot. Id.
    Holleman did not petition the Board to review the
AJ’s initial decision and it became the final decision of the
Board. Holleman timely appealed to this court, and we
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
    Our jurisdiction to review Board decisions is limited.
By statute, we must affirm the Board’s decision unless it
is: “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
6                                        HOLLEMAN   v. MSPB



out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Whether the Board has juris-
diction to adjudicate an appeal is a question of law, which
we review de novo. Johnston v. Merit Sys. Prot. Bd., 518
F.3d 905, 909 (Fed. Cir. 2008). The petitioner bears the
burden of establishing the Board’s jurisdiction by a pre-
ponderance of the evidence. Fields v. Dep’t of Justice, 452
F.3d 1297, 1302 (Fed. Cir. 2006).
    The Board’s jurisdiction is “determined by the nature
of an agency’s action at the time an appeal is filed with
the Board.” Fernandez v. Dep’t of Justice, 105 M.S.P.R.
443, 446 (2007). “An agency’s unilateral modification of
its adverse action after an appeal has been filed cannot
divest the Board of jurisdiction unless the appellant
consents to such divesture or unless the agency complete-
ly rescinds the action being appealed.” Haskins v. Dep’t of
the Navy, 106 M.S.P.R. 616, 623 (2007). We have recog-
nized that, where “an appealable action is canceled or
rescinded by an agency, any appeal from that action
becomes moot.” Cooper v. Dep’t of the Navy, 108 F.3d 324,
326 (Fed. Cir. 1997). Dismissal of an appeal as moot is a
dismissal for lack of jurisdiction. Haskins, 106 M.S.P.R.
at 624.
     For an appeal to be deemed moot, “the employee must
have received all of the relief that he could have received
if the matter had been adjudicated and he had prevailed.”
Fernandez, 105 M.S.P.R. at 446 (internal citation and
quotation marks omitted). Stated differently, the employ-
ee “must be returned to the status quo ante and not left in
a worse position because of the cancellation than he would
have been in if the matter had been adjudicated.” Harris
v. Dep’t of the Air Force, 96 M.S.P.R. 193, 195-96 (2004).
The Board has explained that “return to the status quo
ante requires return, with back pay, to a position of the
same grade, pay, status, and tenure as the one occupied
before the agency’s action.” Id. at 196.
HOLLEMAN   v. MSPB                                         7



    Holleman’s primary argument on appeal is that he is
entitled to receive back pay from March 2010 until his
incarceration on different charges in October 2013.
Specifically, Holleman claims that he “was not found
guilty of any of the charges that the Postal Service re-
moved me under in March 2010.” Petitioner’s Informal
Br. 1. Holleman was not removed in March 2010, howev-
er. Instead, he was indefinitely suspended and placed on
“non-pay, non-duty status” effective March 24, 2010. R.A.
15-16. It is undisputed that Holleman did not appeal the
agency’s decision placing him on indefinite suspension,
and any attempts to do so now are untimely. In any
event, as discussed below, we agree with the Board that
Holleman is not entitled to receive back pay. 1
    As a preference eligible veteran, Holleman’s claim for
back pay must comport with the Back Pay Act, 5 U.S.C.
§ 5596(b)(1). See Campbell v. United States Postal Serv.,
75 M.S.P.R. 273, 277 (1997) (“The Board has held that the



    1    Holleman also argues that he was “not given due
process” because he “was not treated the same as other
carriers were treated.” Petitioner’s Informal Br. 2. This
argument is without merit. “The essential requirements
of due process . . . are notice and an opportunity to re-
spond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 546 (1985). The record indicates that the agency
gave Holleman notice of the charges against him and an
opportunity to respond. Holleman did, in fact, file re-
sponses to each of the agency’s actions. And, on this
record, the Board did not err in declining to consider the
circumstances of other individuals. See Kohl v. United
States Postal Serv., 115 F. App’x 49, 52 (Fed. Cir. 2004)
(“Unevenness of a penalty as compared to other employ-
ees is only relevant where the disparate treatment leads
to a conclusion of willful discrimination.” (citing Facer v.
Dep’t of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988))).
8                                         HOLLEMAN   v. MSPB



right of a U.S. Postal Service preference eligible to receive
back pay and benefits must accord with the Back Pay Act,
5 U.S.C. § 5596(b)(1).”). The Act provides that back pay is
available to an employee “who, on the basis of a timely
appeal or an administrative determination . . . is found by
appropriate authority under applicable law . . . to have
been affected by an unjustified or unwarranted personnel
action . . . .” 5 U.S.C. § 5596(b)(1). As noted, an employee
“is not restored to the status quo ante where he does not
receive all the back pay to which he is entitled.” Gillespie
v. Dep’t of Defense, 90 M.S.P.R. 327, 331 (2001).
    Holleman appeals from the agency’s April 2014 deci-
sion removing him based on his unavailability for work.
It is undisputed that the removal action stemmed from
charges of: (1) continuous absence without official leave;
and (2) failure to follow instructions. Final Decision, 2015
MSPB LEXIS 850, at *5. As the AJ explained, if this
matter had been adjudicated and Holleman prevailed, “he
would have been entitled to receive back pay for the
period from the effective date of his removal to the date of
the reversal.” Id. The AJ found that the effective date of
Holleman’s removal from the agency was April 3, 2014,
and that, by then, Holleman had already been incarcer-
ated for several months due to his own criminal miscon-
duct. Id. at *7. Because his incarceration made him
unavailable for work, the AJ concluded that the agency
was not obligated to give him back pay during that time.
Id. We agree, and Holleman does not challenge this
determination on appeal. See Petitioner’s Informal Br. 2
(“I have never asked to be paid while I have been incar-
cerated on different charges.”); see also Winslow v. Dep’t of
the Navy, 46 M.S.P.R. 246, 250 (1990) (“[T]he appellant is
not entitled to back pay for the period of his incarcera-
tion.”).
   Holleman seems to suggest that, because he allegedly
was not convicted of the charges the agency relied upon in
suspending him, he is entitled to back pay for the period
HOLLEMAN   v. MSPB                                       9



of his indefinite suspension prior to his incarceration. We
disagree. An agency is entitled to suspend an employee
when it has reasonable cause to believe that employee
committed a crime for which a sentence of imprisonment
could be imposed. Rhodes, 487 F.3d at 1380. Given
Holleman’s arrest on criminal charges, including felonies,
the agency found this requirement satisfied. Final Deci-
sion, 2015 MSPB LEXIS 850, at *6. That Holleman may
not have been convicted on the precise charges that led to
his indefinite suspension is irrelevant. The fact remains
that Holleman was convicted in October 2013 of a felony
sexual offense. R.A. 17. Thus, his ultimate conviction
related to the same category of crimes the agency felt
justified his suspension in the first instance.
    Even if Holleman was exonerated of the charges the
agency relied upon in suspending him, he is not entitled
to back pay for the period of his suspension. 2 As noted,
the Back Pay Act authorizes compensation only for ac-



   2    Holleman submits for the first time on appeal a
document from a North Carolina court dated August 5,
2014, which appears to show dismissal of Holleman’s
witness intimidation charge. The precise nature of the
dismissal is unclear. We do not consider on appeal docu-
ments that were not part of the record before the Board.
See Turman-Kent v. Merit Sys. Prot. Bd., 657 F.3d 1280,
1283 (Fed. Cir. 2011) (“Because those items were not
presented to the Board, they are not part of the record on
appeal and are not properly before us.”); Oshiver v. Office
of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990) (“We
will not consider the new evidence contained in the sup-
plemental papers because that evidence was not present-
ed to the Board.”). Even if we were to consider it,
however, Holleman is not entitled to relief because the
agency’s decision to indefinitely suspend him was not
unjustified or unwarranted.
10                                        HOLLEMAN   v. MSPB



tions that are found by “an appropriate authority” to be
“unjustified or unwarranted.”        5 U.S.C. § 5596(b)(1).
Holleman did not appeal his indefinite suspension and did
not argue that it was an unjustified or unwarranted
action in the first instance. Where, as here, the agency
had reasonable cause to indefinitely suspend an employ-
ee, that employee is not entitled to back pay for the period
of the suspension. See Wiemers v. Merit Sys. Prot. Bd.,
792 F.2d 1113, 1116 (Fed. Cir. 1986) (concluding that
“reversal of the petitioner’s conviction did not entitle him
to back pay for any part of the period of suspension”); see
also Payne v. United States Postal Serv., 69 M.S.P.R. 503,
509 n.* (1996) (“[A] validly initiated indefinite suspension
is not an unjustified or unwarranted personnel action
prior to dismissal of the indictment or acquittal and thus
does not generate entitlement to back pay.”); Shaffer v.
Def. Logistics Agency, 35 M.S.P.R. 664, 667-68 (1987)
(“”[W]here an employee’s indefinite suspension based on
an indictment is proper when effected, he is not entitled
to back pay for the period of the suspension, regardless of
the outcome of the criminal charges.”).
    On this record, because Holleman is not entitled to re-
ceive any back pay, the agency’s decision rescinding his
removal and placing him on “non-pay, non-duty” status
returned him to the status quo ante. See Harris, 96
M.S.P.R. at 490-91. As such, there was no further relief
the Board could grant in this appeal. Final Decision,
2015 MSPB LEXIS 850 at *7 (finding that Holleman “has
no further cognizable interest in the outcome of the ap-
peal”); see also Moore v. Dep’t of Veterans Affairs, 109
M.S.P.R. 386, 389 (2008) (noting that an appeal is ren-
dered moot where “it is impossible for the Board to grant
any further effectual relief”). Accordingly, we agree with
the Board that Holleman’s appeal was rendered moot and
thus dismissal was appropriate.
HOLLEMAN   v. MSPB                                   11



                     CONCLUSION
     For the foregoing reasons, and because we find Hol-
leman’s remaining arguments are without merit, we
affirm the Board’s final decision.
                     AFFIRMED
                         COSTS
   No costs.
