                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROGER W. BREWER,                                DOCKET NUMBER
                  Appellant,                         CH-0752-16-0093-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 17, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Roger W. Brewer, Cincinnati, Ohio, pro se.

           David E. Mapp, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his removal appeal as moot. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the administrative

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        Effective October 17, 2015, the agency removed the appellant from his Mail
     Handler position for unsatisfactory attendance after he had been absent without
     leave since November 25, 2012. Initial Appeal File (IAF), Tab 1 at 7-10. The
     appellant appealed the agency’s action to the Board. IAF, Tab 1. The agency
     moved to dismiss the appeal as moot arguing that it had rescinded and expunged
     the proposal notice and decision letter concerning the appellant’s removal. IAF,
     Tab 5 at 6-7.
¶3        In an initial decision, the administrative judge dismissed the appeal as
     moot. IAF, Tab 8, Initial Decision (ID) at 1. The administrative judge found that
     the appellant had consented to the dismissal of the appeal and the agency had
     reinstated the appellant and expunged the removal action and all associated
     documents from his official personnel file. ID at 4. The administrative judge
     further found that the appellant had been returned to the status quo ante because
     he was reinstated to a leave status due to his medical condition. Id.
¶4        The appellant has filed a petition for review in which he contends that he
     suffers from asthma and allergies that resulted from his working conditions,
     submitted medical documentation concerning his asthma and allergies, and asserts
                                                                                            3

     that the agency has failed to assist him with his application for disability
     retirement. 2   Petition for Review (PFR) File, Tab 1 at 1-11.         The agency has
     opposed the appellant’s petition. PFR File, Tab 3.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶5           The Board’s jurisdiction is determined by the nature of an agency’s action
     against a particular appellant at the time an appeal is filed with the Board, and an
     agency’s unilateral modification of its action after an appeal has been filed cannot
     divest the Board of jurisdiction unless the appellant consents to such divestiture
     or unless the agency completely rescinds the action being appealed. Himmel v.
     Department of Justice, 6 M.S.P.R. 484, 486 (1981); see Vidal v. Department of
     Justice, 113 M.S.P.R. 254, ¶ 4 (2010). When an agency cancels or rescinds an
     action after the action has been appealed, the Board may dismiss the appeal as
     moot.     Vidal, 113 M.S.P.R. 254, ¶ 4.     For an appeal to be rendered moot, an
     appellant must receive all of the relief that he could have received if the matter
     had been adjudicated and he had prevailed. Id.
¶6           In the proceedings below, the agency submitted a letter notifying the
     appellant that the notice of proposed removal and removal decision letter had
     been rescinded and expunged from his record.           IAF, Tab 5 at 20.     The letter
     informed the appellant that he was not being directed to immediately return to
     duty because the union provided medical documentation from a January 26, 2015
     examination, which indicated that he was unable to work for at least 12 months.
     Id.     Thus, the agency’s letter directed the appellant to return to duty on

     2
       The appellant did not raise any of these arguments below. The Board generally
     will not consider an argument raised for the first time in a petition for review absent a
     showing that it is based on new and material evidence not previously available despite
     the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
     (1980). Because the appellant has failed to show that his new arguments and evidence
     previously were unavailable, we have not considered them. However, even if we were
     to consider them, such arguments would not provide a basis for reversal of the initial
     decision because they do not establish that there exists any further relief the Board
     could order regarding the appellant’s removal.
                                                                                       4

     January 27, 2016, or provide updated medical documentation supporting his
     continued incapacity for work and anticipated recovery date. Id.
¶7        As stated above, the administrative judge found that the agency expunged
     the removal action and all associated documents from the appellant’s official
     personnel file. ID at 4. On review, the appellant does not provide a reason to
     disturb this finding. He does not contend that the agency failed to completely
     rescind the removal action and acknowledges that the agency “dropped the
     charges.” PFR File, Tab 1 at 9. Nor does he dispute the administrative judge’s
     finding that he consented to the dismissal of the appeal below during a status
     conference held on January 15, 2016. ID at 4.
¶8        Because the record reflects that the appellant has been afforded all the relief
     to which he would have been entitled had he prevailed on his removal appeal and
     he has failed to allege the availability of any remaining remedy, we find that the
     administrative judge properly dismissed the appeal as moot.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit. You must submit your request to the
     court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

     The court must receive your request for review no later than 60 calendar days
     after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
     2012). If you choose to file, be very careful to file on time. The court has held
     that normally it does not have the authority to waive this statutory deadline and
     that filings that do not comply with the deadline must be dismissed. See Pinat v.
     Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
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      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).    You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional     information     is    available    at    the     court’s    website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
