NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

TIMOTHY C. BENNINGTON, 

Petitioner, 

and 

STEVEN R. HAYES, 

Petitioner, 

and 

TIMOTHY A. HUBAL, 

Petitioner, 

and 

RICHARD E. KIDWELL, 

Petitioner, 

and 

CARL C. WILLIAMS, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

and 

UNITED STATES POSTAL SERVICE, 

Intervenor. 

__________________________ 

2011-3222 
BENNINGTON v. MSPB 2

__________________________ 

Petition for review of the Merit Systems Protection 

Board in consolidated case nos. CH0351100110-I-1, 

CH0351100117-I-1, CH0351100119-I-1, CH0351100128-I1, and CH0351100127-I-1. 

____________________________ 

Decided: May 9, 2012 

____________________________ 

TIMOTHY C. BENNINGTON, of Lancaster, Ohio, pro se. 

STEVEN R. HAYES, of Pataskala, Ohio, pro se. 

TIMOTHY A. HUBAL, of Byesville, Ohio, pro se. 

RICHARD E. KIDWELL, of Somerset, Ohio, pro se. 

CARL C. WILLIAMS, of Springfield, Ohio, pro se. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC. With him on the brief were JAMES M. EISENMANN, 

General Counsel and KEISHA DAWN BELL, Deputy General 

Counsel. 

MICHAEL S. MACKO, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for Intervenor. With him 

on the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN, 

Assistant Director. 

__________________________ 
3 BENNINGTON v. MSPB

Before RADER, Chief Judge, DYK and PROST, Circuit 

Judges. 

PER CURIAM. 

Thomas C. Bennington, Steven R. Hayes, Timothy A. 

Hubal, Richard E. Kidwell, and Carl C. Williams (collectively, “petitioners”) appeal a final decision of the Merit 

Systems Protection Board (“the Board”) dismissing their 

adverse agency action appeals for lack of subject matter 

jurisdiction.1 Bennington v. U.S. Postal Serv. (“Final 

Decision”), Nos. CH-0351-10-0110-I-1, -0117-I-1, -0119-I1, -0124-I-1, -0127-I-1, -0128-I-1 (M.S.P.B. July 27, 2011). 

In its decision, the Board denied review of the initial 

decision of the Administrative Judge (“AJ”) which had 

dismissed petitioners’ appeals as moot, but sua sponte 

dismissed petitioners’ appeals for lack of subject-matter 

jurisdiction. Because we find that the issues raised in 

this appeal are moot, we dismiss. 

BACKGROUND

Petitioners were Tractor Trailer Operators for the 

United States Postal Service (“Postal Service”) in Columbus, Ohio. In 2009, the Postal Service abolished all of the 

Tractor Trailer Operator positions in Columbus when it 

elected to contract out the functions normally performed 

by persons in those positions. As a result, on October 10, 

2009, petitioners were reassigned to Mail Handler positions. Petitioners appealed their reassignments to the 

Board, alleging that they had suffered a reduction in pay 

or grade or that they had been demoted pursuant to a 

reduction in force. See 5 U.S.C. §§ 7512, 7513(d); 5 C.F.R. 

§ 351.901. While petitioners’ appeals to the Board were 

pending, the Postal Service rescinded petitioners’ Mail 

 1 Petitioners’ appeals were consolidated by the 

Board for disposition. 
BENNINGTON v. MSPB 4

Handler reassignments, retroactively restoring them to 

their former positions as Tractor Trailer Operators for a 

period of two weeks until they were reassigned to positions as Letter Carriers.2 In so doing, the Postal Service 

also removed all references to the Mail Handler reassignments from petitioners’ personnel files, and petitioners did not lose any pay or benefits as a result of their 

reassignments. 

Based on its rescission of the Mail Handler reassignments, the Postal Service moved to dismiss petitioners’ 

appeals as moot. On July 2, 2010, the AJ granted the 

motion, finding that “the agency placed the [petitioners] 

in the exact situation they would have been in if they had 

won their [Board] appeals.” Bennington v. U.S. Postal 

Serv. (“Initial Decision”), Nos. CH-0351-10-0110-I-1, -

0112-I-1, -0115-I-1, -0116-I-1, -0117-I-1, -0119-I-1, -0124-

I-1, -0127-I-1, -0128-I-1, slip op. at 4 (M.S.P.B. July 2, 

2010). The AJ also noted that “[t]he Board has no authority to order the agency to re-establish [the Tractor Trailer 

Operator] positions or to review an agency’s decision to 

contract out functions it formerly performed.” Id. The AJ 

advised petitioners that if they wished to challenge their 

subsequent reassignment to Letter Carrier positions, they 

should file a separate appeal. Id. at 6. 

On July 21, 2010, petitioners petitioned the Board for 

review of the AJ’s initial decision. Additionally, on August 24, 2010, in response to the AJ’s comment, petitioners filed separate appeals challenging their reassignment 

 2 Petitioners were restored to their former positions 

on paper only because the actual Tractor Trailer Operator 

positions had already been abolished. During the two 

weeks that petitioners were classified as Tractor Trailer 

Operators, they did not perform any of the duties or 

responsibilities of a Tractor Trailer Operator, but actually 

attended Letter Carrier training. 
5 BENNINGTON v. MSPB

to the Letter Carrier positions as a reduction in grade or 

pay or a demotion due to a reduction in force. In a June 

30, 2011, final decision, these subsequent appeals were 

dismissed by the Board for lack of jurisdiction because the 

Board found that petitioners’ Letter Carrier reassignments were not appealable actions. See Bennington v. 

U.S. Postal Serv., Nos. CH-3330-10-0938-I-1, -0939-I-1, -

0940-I-1, -0941-I-1, -0942-I-1 (M.S.P.B. June 30, 2011). 

Petitioners failed to timely appeal the Board’s decision 

dismissing their appeals of their Letter Carrier reassignments within sixty days. Accordingly, that decision is 

now binding on them. See Carson v. Dep’t of Energy, 398 

F.3d 1369, 1375 (Fed. Cir. 2005). 

On July 27, 2011, after the Board’s final decision on 

petitioners’ Letter Carrier reassignments, but before the 

time to appeal that decision had expired, the Board issued 

its final decision on petitioners’ Mail Handler reassignments. The Board declined to “decide whether the [AJ] 

properly dismissed these appeals as moot,” and sua 

sponte dismissed petitioners’ appeals “for lack of jurisdiction upon finding that the record is fully developed on the 

question of whether the Board has jurisdiction over 

[petitioners’] assignments to the Mail Handler positions 

as demotions by reduction in force (RIF) or reductions in 

grade or pay.” Final Decision, slip op. at 2-3. Specifically, 

the Board found that the representative rates for the Mail 

Handler positions were greater than those for the Tractor 

Trailer Operator positions, and thus, “there [was] no 

indication that the [petitioners] were demoted by RIF.” 

Id. at 4. Similarly, the Board found that petitioners had 

failed to establish that they were reduced in grade or pay 

under 5 U.S.C. § 7512. Id. at 5. This appeal followed. We 

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 
BENNINGTON v. MSPB 6

DISCUSSION

Our review of Board decisions is limited. We may 

only set aside agency actions, findings, or conclusions that 

we find to be “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation 

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c); see also Bennett v. Merit 

Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011). “The 

[Board’s] determination that it lacked jurisdiction is a 

question of law that the court reviews de novo.” Bennett, 

635 F.3d at 1218. Petitioners bear the burden of proof to 

establish jurisdiction over their appeals. See 5 C.F.R. 

§ 1201.56(a)(2)(i). 

The Board dismissed petitioners’ appeals on a different ground from that adopted by the AJ. Rather than 

dismissing the appeals as moot, the Board held that 

petitioners had not established that they had been moved 

to positions with a lower “rate of pay” than their previous 

Tractor Trailer Operator positions, as required to establish either a reduction in pay or grade or a demotion 

pursuant to a reduction in force. See 5 U.S.C. 

§ 7511(a)(3)-(4) (defining “grade” as “level of classification 

under a position classification system,” and “pay” as “the 

rate of basic pay fixed by law or administrative action”); 5 

C.F.R. § 210.102(b)(4) (defining “demotion” as “a change of 

an employee . . . [t]o a position with a lower rate of pay”). 

On review in this court, petitioners argue that the representative rates relied upon by the Board in making this 

determination were not the correct rates that should have 

been applied for purposes of determining whether petitioners were moved to positions with a lower rate of pay. 

We need not decide whether the Board applied the 

correct representative rates of pay in comparing the 
7 BENNINGTON v. MSPB

Tractor Trailer Operator and Mail Handler positions, 

because no live case or controversy is presented. “If 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). 

Restoration of petitioners to their previous positions, 

without lost pay or benefits, and removal of all references 

to the reassignment in their records, would have “eliminated all the consequences of [those] action[s] and thus 

rendered [petitioners’] appeal[s] moot.” Id. In this case, 

the original Tractor Trailer Operator positions were no 

longer available, so petitioners were restored to their 

previous positions on paper only. Under those circumstances, the employee cannot object to transfer to an 

equivalent position. See Local 2855 v. United States, 602 

F.2d 574, 584 (3d Cir. 1979) (“Nothing in the civil service 

statute or regulations prohibits the government from 

abolishing positions held by veterans or other civil servants and contracting out the work previously performed 

by them.”). However, petitioners argue that the Letter 

Carrier positions to which they were actually transferred 

have different duties and rates of pay, and thus are not 

equivalent positions. Where there is a dispute about the 

equivalence of the positions, the employee’s appeal is not 

moot. See Kerr v. Nat’l Endowment for the Arts, 726 F.2d 

730, 733 & n.3 (Fed. Cir. 1984) (“The injured party is to be 

placed, as near as may be, in the situation he would have 

occupied if the wrong had not been committed.” (quoting 

Wicker v. Hoppock, 73 U.S. (6 Wall.) 94, 99 (1867))). 

Thus, the lack of equivalence in the positions was certainly a proper issue to raise in the first appeal. Petitioners’ problem is that they chose to raise the issue of their 

transfer to Letter Carrier positions in a separate appeal, 

which has now been resolved adversely. Under such 

circumstances, this aspect of the original appeal becomes 
BENNINGTON v. MSPB 8

moot. See generally In re Scruggs, 392 F.3d 124, 129 (5th 

Cir. 2004) (holding that where a judgment in another 

matter “lying at the heart of [the] federal litigation” at 

issue “became final and no longer appealable . . . the 

Article III case or controversy in the federal courts ceased 

to exist”). 

Petitioners have received the amount of back pay that 

they claimed, and the transfer issue has been resolved 

against them. The case is moot. See Hernandez v. Dep’t 

of the Air Force, 498 F.3d 1328, 1333 (Fed. Cir. 2007) 

(noting that claims are moot where a party “has already 

received complete relief under them”). 

COSTS

 No costs.