                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JONATHAN BOWLES,                                DOCKET NUMBER
                 Appellant,                          AT-0752-14-0169-I-1

                  v.

     GOVERNMENT PRINTING OFFICE,                     DATE: January 16, 2015
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Bobby Devadoss, Esquire, Dallas, Texas, for the appellant.

           Thomas Kelly, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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).
¶2         Effective October 28, 2013, the agency removed the appellant from his
     position within the agency. Initial Appeal File (IAF), Tab 1 at 7-8. The appellant
     appealed his removal to the Board and requested a hearing. IAF, Tab 1. The
     agency submitted a notice of reinstatement informing the appellant and the
     administrative judge that the removal had been cancelled and the appellant
     retroactively reinstated to his former position within the agency. IAF, Tab 7. In
     an   initial   decision   issued   without   holding   the   requested   hearing,   the
     administrative judge dismissed the appeal as moot. IAF, Tab 14, Initial Decision
     (ID) at 1, 4-5.
¶3         The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. The agency has responded in opposition. PFR
     File, Tab 3.
¶4         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.
                                                                                        3

     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. An agency’s expression of its
     intent to provide such relief is not sufficient to establish that the appeal is moot.
     Id. An appeal is not truly moot until all appropriate relief has been provided. Id.
¶5           In his petition for review, the appellant reiterates his argument that he has
     not been made whole because his “health benefits were never fully and properly
     reinstated by the agency.” PFR File, Tab 1 at 6; see IAF, Tab 10 at 6. The
     agency submitted a declaration from a Human Capital Manager as confirmation
     that the health insurance carrier had reinstated the appellant’s health insurance.
     IAF, Tab 12 at 5. The appellant did not file a response disputing this part of the
     declaration. See ID at 2-3. The administrative judge found that “[t]he agency
     has . . . demonstrated that it has taken all necessary action to reinstate the
     appellant’s health benefits.” ID at 4. On review, the appellant fails to provide a
     reason to disturb this finding. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98,
     105-06 (1997) (finding no reason to disturb the administrative judge’s findings
     when the administrative judge considered the evidence as a whole, drew
     appropriate references, and made reasoned conclusions).
¶6           Although the appellant contended that “part of making him whole would
     also require the agency to pay his legal fees,” the administrative judge properly
     held that the appellant is not entitled to an award of attorney fees because he is
     not a prevailing party. IAF, Tab 13 at 4; see ID at 4. An appellant must show
     that he is the “prevailing party” to establish his entitlement to an award of
     attorney fees in a Board appeal. 5 U.S.C. § 7701(g)(1); Sacco v. Department of
     Justice, 90 M.S.P.R. 225, ¶ 6 (2001), aff’d, 317 F.3d 1384 (Fed. Cir. 2003). An
     appellant who shows that he obtained a material alteration of the legal
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     relationship between the parties through an enforceable final judgment on the
     merits or a settlement agreement entered into the record for the purposes of
     enforcement by the Board is a “prevailing party” under 5 U.S.C. § 7701(g)(1).
     Sanchez v. Department of Homeland Security, 116 M.S.P.R. 183, ¶ 10 (2010).
¶7        The appellant argues on review that, for policy reasons, the Board should
     not allow the agency to “unilaterally rescind disciplinary actions at the last
     minute without paying the Appellant’s legal fees, after the appellant had already
     incurred significant legal cost in defending the said discipline” because “it would
     amount to nullifying the Board’s authority to order and enforce agencies to pay
     attorney’s fees in all cases.” PFR File, Tab 1 at 7. He further contends that
     “allowing the agencies to do this will deter federal employees from bringing forth
     genuine cases that falls [sic] within the Boards [sic] jurisdiction.”     Id.   The
     Supreme Court of the United States has considered and rejected similar
     arguments. Buckhannon Board and Care Home, Inc. v. West Virginia Department
     of Health & Human Resources, 532 U.S. 598, 608 (2001); see Mulero-Echevarria
     v. Office of Personnel Management, 93 M.S.P.R. 154, ¶ 5 (2002). The Board has
     previously applied Buckhannon to cases where the agency voluntarily and
     unilaterally changed its position after the appellant filed a Board appeal. See,
     e.g., Sacco, 90 M.S.P.R. 225, ¶ 8 (finding that the agency unilaterally rescinded
     the alleged adverse action after the appellant appealed). Moreover, “[g]iven the
     clear meaning of ‘prevailing party’ in the fee-shifting statutes,” the Board need
     not determine which way these various policy arguments cut.           Buckhannon,
     532 U.S. at 610; see Mulero-Echevarria, 93 M.S.P.R. 154, ¶ 5.
¶8        Accordingly, the appellant has received all appropriate relief and the
     administrative judge properly dismissed his appeal as moot.
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                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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).
     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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
