                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHIRLEY ANN VARNADO,                            DOCKET NUMBER
                  Appellant,                         AT-0752-13-0039-M-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: January 6, 2017
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Hewitt Smith, Tampa, Florida, for the appellant.

           Marcia N. Tiersky, Esquire, Springfield, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which dismissed as moot her appeal from the denial of a within-grade increase
     (WIGI). For the reasons discussed below, we GRANT the appellant’s petition for
     review, VACATE the remand initial decision, and REMAND the case to the
     regional office for further adjudication in accordance with this Order.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2        The appellant held the position of Criminal Investigator with the agency’s
     Drug Enforcement Administration.       Varnado v. Department of Justice, MSPB
     Docket No. AT-0752-13-0039-M-1, Remand File (RF), Tab 22 at 9.                  In
     February 2007, the agency withheld her scheduled WIGI pending the completion
     of a performance improvement plan.         RF, Tab 21 at 107.      The appellant
     challenged the action through the equal employment opportunity (EEO) process.
     RF, Tab 34 at 42.       In September 2007, the agency removed the appellant for
     unacceptable performance. RF, Tab 22 at 9.
¶3        After EEO proceedings before the agency, the U.S. District Court for the
     Southern District of Florida, and the U.S. Court of Appeals for the Eleventh
     Circuit, the appellant filed a Board appeal. Varnado v. Department of Justice,
     MSPB Docket No. AT-0752-13-0039-I-1, Initial Appeal File (IAF), Tab 1, Tab 7
     at 19; Varnado v. Department of Justice, MSPB Docket No. AT-0752-13-0039-
     L-1, Litigation File, Tab 9, Appendix at 57-66.         The administrative judge
     dismissed the removal claim as untimely filed without good cause shown. IAF,
     Tab 11, Initial Decision at 1, 4-5.        On review, the Board affirmed the
     administrative judge’s timeliness determination and noted that “[t]he appellant []
     presented no evidence that she received a reconsideration decision, a
     jurisdictional prerequisite for an appeal of a denial of a [WIGI].”    Varnado v.
     Department of Justice, MSPB Docket No. AT-0752-13-0039-I-1, Final Order at 2,
     6 n.4 (Mar. 4, 2014).
¶4        Following the Board’s decision, the appellant appealed the decision to the
     U.S. Court of Appeals for the Federal Circuit (Federal Circuit). Varnado v. Merit
     Systems Protection Board, 603 F. App’x 963 (Fed. Cir. 2015).          The Federal
     Circuit agreed with the Board regarding the dismissal of the removal claim, but
     remanded the WIGI denial claim to the Board to inform the appellant of the
     elements of her jurisdictional burden of proof and provide her with an opportunity
     to establish jurisdiction over the WIGI denial. Id. at 967-69.
                                                                                     3

¶5        Following a determination by the administrative judge on remand that the
     Board had jurisdiction over the denial of the appellant’s WIGI, the agency
     granted the appellant a retroactive WIGI, paid her back pay, including interest,
     and filed a motion to dismiss the appeal as moot. RF, Tabs 19, 26, 32. The
     administrative judge ordered the appellant to show cause why the appeal should
     not be dismissed as moot. RF, Tab 33. The appellant responded. RF, Tab 34.
¶6        In a remand initial decision, the administrative judge found that the
     appellant received the relief to which she would have been entitled to receive if
     she had prevailed on her WIGI denial claim, and thus, he dismissed the appeal as
     moot. RF, Tab 36, Remand Initial Decision (RID) at 1, 3-4. Contrary to the
     appellant’s arguments, he found that the Federal Circuit’s decision does not
     require or authorize the Board to reopen her removal appeal. RID at 3.
¶7        The appellant has filed a petition for review. Varnado v. Department of
     Justice, MSPB Docket No. AT-0752-13-0039-M-1, Remand Petition for Review
     (RPFR) File, Tabs 4, 6. The agency has filed a response, and the appellant has
     replied. RPFR File, Tabs 8-9.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶8        A case is moot when the issues presented are no longer “live” or the parties
     lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
     Service, 2016 MSPB 40, ¶ 8. An appeal will be dismissed as moot if, by virtue of
     an intervening event, the Board cannot grant any effectual relief in favor of the
     appellant. Id. Thus, an agency’s complete rescission of the action appealed, and
     an appellant’s restoration to the status quo ante, may render an appeal moot. Id.
     However, if an appellant raises a claim for compensatory damages that the Board
     has jurisdiction to adjudicate, the agency’s complete rescission of the action
     appealed does not afford her all of the relief available before the Board and thus
     the appeal is not moot. Id.
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¶9         As noted previously, the appellant filed an EEO complaint regarding the
      denial of her WIGI.       RF, Tab 34 at 42.     On review, the appellant claims
      entitlement to compensatory damages. RPFR File, Tab 4 at 5, 12, Tab 9 at 2, 7.
      Because the appellant could have been entitled to compensatory damages based
      on her discrimination claims, the administrative judge erred by failing to consider
      them below.      See Hess, 2016 MSPB 40, ¶ 20 (finding that the Board has the
      authority   to    award   compensatory    damages);     5 C.F.R.     §§ 1201.201(d),
      1201.202(c).     Therefore, we vacate the remand initial decision dismissing the
      appeal as moot and remand the appeal for further adjudication of the appellant’s
      discrimination and compensatory damages claims.            See, e.g., Antonio v.
      Department of the Air Force, 107 M.S.P.R. 626, ¶¶ 1, 13-15 (2008) (vacating the
      initial decision that dismissed the appellant’s removal appeal as moot and
      remanding the appeal for further adjudication of his discrimination and potential
      compensatory damages claims). 2
¶10        On remand, the administrative judge shall apprise the appellant of her
      burdens of proof on her discrimination claims and allow the parties to present
      evidence and argument on these claims. See id., ¶ 15. If necessary, he should
      also hold a hearing on her discrimination claims. IAF, Tab 1 at 2; see Hess v.
      U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 9-10 (2016) (remanding the appellant’s
      discrimination claims for a hearing because she raised a cognizable claim of
      discrimination in connection with an otherwise appealable action).




      2
        Because compensatory damages are not authorized for age discrimination claims, the
      administrative judge need not address the appellant’s age discrimination claim on
      remand. Antonio, 107 M.S.P.R. 626, ¶ 13.
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                                          ORDER
¶11         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




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