         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

               ANTONIO J. RODRIGUEZ,
                     Petitioner,

                             v.
       MERIT SYSTEMS PROTECTION BOARD,
                  Respondent.
                __________________________

                        2010-3149
                __________________________

   Petition for review of the Merit Systems Protection
Board in Case No. NY0731090060-B-1.
              ___________________________

                  Decided: June 13, 2011
                ___________________________

      ANTONIO J. RODRIGUEZ, of Elizabeth, New Jersey, pro
se.

   MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel and KEISHA
DAWN BELL, Deputy General Counsel.
             __________________________
RODRIGUEZ   v. MSPB                                      2


   Before RADER, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.

                        DECISION

    Antonio Rodriguez seeks review of an order of the
Merit Systems Protection Board dismissing his appeal for
lack of jurisdiction. We affirm.

                      BACKGROUND

    Mr. Rodriguez applied for a position as an Agriculture
Specialist with the Department of Homeland Security
(“DHS”). The agency extended him an offer that was
contingent on the results of a background investigation.
Subsequently, the agency sent Mr. Rodriguez a notice of
proposed unsuitability for employment based on “deroga-
tory information developed during the investigation” into
his background. The notice indicated that “financial
issues” were the sole source of the derogatory information.
Mr. Rodriguez was advised of his opportunity to present a
written response to the proposed finding of unsuitability,
along with additional information or evidence. A page
attached to the notice included a reference to “dishonest
conduct,” and directed him to “address each listed issue in
detail.” However, the proposed notice itself listed no
issues relating to dishonest conduct.

    Mr. Rodriguez responded to the agency’s notice of
proposed unsuitability by contesting the agency’s conclu-
sions about his financial situation and asking for addi-
tional time to provide further information.     He later
supplemented his response with documentation indicat-
ing that his financial situation had become more stable.
After considering Mr. Rodriguez’s response, DHS notified
him that he had been found unsuitable for the position
3                                        RODRIGUEZ   v. MSPB


due to both financial issues and dishonest conduct.
Consequently, his tentative offer of employment was
rescinded. At that time, DHS informed Mr. Rodriguez
that “[i]n accordance with the provisions of Title 5, Code
of Federal Regulations, Part 731, you have the right to
appeal this suitability action” to the Merit Systems Pro-
tection Board.

    Mr. Rodriguez filed an appeal with the Board contest-
ing the unsuitability finding, and the administrative
judge who was assigned to the appeal scheduled a hearing
in the case. Following a prehearing conference, however,
DHS informed Mr. Rodriguez that the agency’s unsuit-
ability determination had been overturned. DHS then
immediately extended Mr. Rodriguez an offer for the
position of Agriculture Specialist, and he accepted that
offer. The agency then moved to dismiss Mr. Rodriguez’s
appeal to the Board for mootness because he “would be
entitled to nothing more” than a suitability determination
should he prevail in his appeal.

    Through counsel, Mr. Rodriguez contested the
agency’s motion to dismiss on two grounds. First, he
claimed entitlement to legal fees incurred in his appeal to
the Board. Second, he sought an additional remedy from
the agency in the form of a “complete rescission” of its
finding that Mr. Rodriguez had engaged in dishonest
conduct. The agency responded that a claim for legal fees
could not prevent dismissal of the appeal for mootness
and that the letter overturning the negative suitability
determination sufficed to prevent any future injury to Mr.
Rodriguez from that determination. The administrative
judge agreed with DHS and dismissed his appeal as moot.

    Mr. Rodriguez appealed to the full Board, which va-
cated the dismissal and remanded the case to the admin-
RODRIGUEZ   v. MSPB                                        4


istrative judge. The Board instructed the administrative
judge to consider whether, under regulations of the Office
of Personnel Management (“OPM”) that were revised as of
June 2008, the Board had lacked jurisdiction over Mr.
Rodriguez’s appeal from the outset. In the event the
administrative judge found that the Board had jurisdic-
tion, the full Board instructed the administrative judge to
determine whether DHS had “completely expunge[d] the
appellant’s personnel record of all references to the nega-
tive suitability determination.” The Board found that the
appeal would not be mooted unless all such references
had been removed from the agency’s records. The Board
agreed with the administrative judge, however, that Mr.
Rodriguez’s claim for legal fees did not bar dismissal of
his appeal for mootness.

    On remand, the administrative judge dismissed Mr.
Rodriguez’s appeal after determining that the Board
lacked jurisdiction over his claim from the outset. The
administrative judge noted that the OPM regulations in
effect as of the time of the proceedings in this case provide
no right of appeal to the Board from an agency’s refusal to
select an applicant for appointment, even if the refusal is
based on a disputed unsuitability determination. Mr.
Rodriguez again appealed the dismissal of his case to the
full Board. When the Board denied his petition for re-
view, Mr. Rodriguez sought review in this court.

                        DISCUSSION

    Prior to mid-2008, OPM regulations made the denial
of an appointment based on an unsuitability determina-
tion appealable to the Board. 5 C.F.R. §§ 731.203(a)(2),
731.501(a) (2008). In April 2008, however, OPM issued a
rule removing denial of appointment from the list of
“suitability actions” that are subject to Board review. 73
5                                        RODRIGUEZ   v. MSPB


Fed. Reg. 20,149, 20,157 (Apr. 15, 2008). That rule went
into effect in June 2008, which was a month before DHS
notified Mr. Rodriguez of the “derogatory information”
that it purportedly discovered in the course of its back-
ground investigation. Thus, the June 2008 regulations
apply in this case. Under those regulations, Mr. Rodri-
guez’s non-selection for appointment because of DHS’s
unsuitability determination was not an action that was
appealable to the Board. 5 C.F.R. § 731.203(a), (b) (2009);
see 72 Fed. Reg. 2203, 2203 (Jan. 18, 2007) (clarifying the
change in regulations).

     Both DHS and the Board’s administrative judge ini-
tially erred in assuming that the Board had jurisdiction to
hear Mr. Rodriguez’s appeal. However, in the decision
giving rise to this appeal, the Board properly determined
that it lacked jurisdiction over Mr. Rodriguez’s appeal of
DHS’s suitability determination. While DHS employed
the suitability criteria listed in the OPM regulations in
making its determination, and it termed the action a
“suitability finding,” the action that it took was not re-
viewable by the Board under the regulations that were in
effect at the time of that action. Because the Board lacks
jurisdiction over Mr. Rodriguez’s appeal, it has no power
to grant the relief Mr. Rodriguez seeks in the form of an
order requiring DHS to expunge all references to dishon-
est conduct from the records of its suitability determina-
tion.

    Mr. Rodriguez also argues that he is entitled to “re-
imbursement of all costs and fees incurred in [his] quest
and appeal of the agency’s unsuitab[ility] position.” To
the contrary, Mr. Rodriguez is not entitled to a fee award
because he was not a “prevailing party” at any stage of his
appeal, as that term has been construed by the Board.
See 5 U.S.C. § 7701(g). To be considered a prevailing
RODRIGUEZ   v. MSPB                                      6


party, a party must receive a final judgment granting “at
least some relief on the merits of his claim” leading to a
“material alteration of the legal relationship of the par-
ties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t
of Health & Human Res., 532 U.S. 598, 603, 604 (2001)
(citations and internal quotation marks omitted). Al-
though the Buckhannon case arose under a different fee
statute, the Supreme Court’s analysis of the term “pre-
vailing party” in that case has been applied to similar
language in other fee statutes, see Brickwood Contractors,
Inc. v. United States, 288 F.3d 1371, 1377 (Fed. Cir.
2002), including the statute governing fees for legal work
done in Board proceedings, see Sacco v. Dep’t of Justice,
317 F.3d 1384, 1386-87 (Fed. Cir. 2003) (applying Buck-
hannon to “prevailing party” determinations in attorney
fee proceedings under 5 U.S.C. § 7701(g)); Sanchez v.
Dep’t of Justice, 116 M.S.P.R. 183, 186 (2010) (same).
While Mr. Rodriguez succeeded in obtaining review by the
full Board of the administrative judge’s initial determina-
tion of mootness, the Board’s decision did not grant Mr.
Rodriguez any relief on the merits of his claim. Instead,
the Board remanded his case to the administrative judge
for reconsideration of the Board’s subject matter jurisdic-
tion. The remand to the administrative judge for a juris-
dictional determination did not make Mr. Rodriguez a
prevailing party eligible to recover legal fees or costs.

    The Board correctly determined that it lacks jurisdic-
tion over Mr. Rodriguez’s claim relating to his non-
selection by DHS, and Mr. Rodriguez’s claim for attorney
fees is without merit. We therefore uphold the decision of
the Board dismissing his appeal.

   No costs.

                      AFFIRMED
