# United Sta tes Co urt of A ppea ls

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T



## No. 22-5256 September Term, 2023

F I L E D O N : S E P TE M B E R 25, 2023 R O B E R T M. M I L L E R , A P P E L L A N T

v.

M A R TI N J

. G R U E N B E R G , C H A I R

M A N , F E D E R

A L D E P O S I T I

N S U R A N C E C O R

P O R A TI O N , E T A L ., A P P E L L E E S

Appea l from the United States District Court for the D istrict of Columbia (No. 1:21-c v-03035)

Be fore : S R

I N I V A S A N , Chief Judge , G A R

C I A , Circuit Judge , and R A N D O L P H , Senior Circuit Judge

.

J U D G M E N T

The co urt has acc orded the issues full consideration and has deter mined that they do not

war rant a published opinion. See D.C. C I R

. R. 36(d). F or the re asons stated be low, it is:

ORDERED and ADJUDG ED that the judg ment of the district cour t be af firmed.

* * *

I n 2020, the Fe dera l Deposit I nsuranc e Corporation place d employ ee Robert Mill er o n an indefinite suspension. Miller appea led to the Merit Sy stems Protection Boa rd. I n September 2021,

an Administrative J udg e issued an initial decision finding that the Agen cy should have ended the suspension. Although the J udg e order ed the Ag ency to “re troac tively

restore ” Miller and pa

y him “the approp riate amount of back pay with interest,” the J udg e’s decision was silent on whether Miller should b e af

forde d interim relief under Section 7701 of the Civil Service Reform Act during the pendenc y of an appea l to the Boa rd. See 5 U.S.C. § 7701(b). The Agen cy appea led the J udg e’s decision without reinstating or pay ing Miller.

Whil e the Boa

rd was considering the Ag ency ’s administrative appea l, Miller filed this civilaction. See 5 U.S.C. § 7702(e)

. He soug ht a preliminary injunction that would require the ag ency

to restore hi s p ay and benef its until the Boa

rd issued a final order

. The district court denied the motion, and Mill er a

ppeale d.

Miller’s motion relied on the Civil Service Reform Act, which provides that a “pre vailing” employ ee “shall be g rante d t h e re l i ef in the [Board’ s initial] decision” until “the outcome of any petition for revie w,” with two exceptions. 5 U. S

. C. § 7701(b)( 2). He arg ued that as a preva iling party , he was entitled to interim relief as a matter of law and that neither statutory exception applied.

The Ag ency n o w ag ree s. The Boa rd rec ently issued a prec edential opinion holding that § 7701(b)( 2) of the Act entitles preva iling employ ees to interim relief “by defa ult.” Stewart v. Dep’ t of Transp.
, 2023 M.S.P .B. 18 ¶ 10 (May 16, 2023). I n May 2023, the Boa rd also issued a final order (1) vacating th e Ad m i n i s t rative J udg e’s finding that the Ag ency should have ended Miller’s suspension and (2) holding that Miller was entitled to the interim relief descr ibed in th e initial decision.

The Ag ency has conce ded that it owes Miller back pay for the period betwee n the initial and final decisions. I n Aug ust 2023, the Ag ency g ave Miller this back pay , plus i n t er es t

. W h en an

acc ept ed p ay

m en t fully satisfies a plaintiff’s claim, the claim is moot. Campbell-Ewald Co. v. Gomez
, 557 U.S. 153, 163–64 (2016). But at oral arg ument, Amicus stated that Miller disputes both the pay ment amount and the ter

ms of his benefits. So the appea l is not m oot.

But injunctive relief is discret i o n ary

. See Tenn. Valley Auth. v. Hill
, 437 U.S. 153, 193 (1978). The Ag ency has repr esente d that it is working to calc ulate the corr ect pay ment and benef

its. We presume that fede ral office rs will adher e t o t he law as pronounce d by the court. SanchezEspinoza v. Reagan
, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985) (Scalia, J .). T h at l aw n o w includes Mil l er ’s s t at utory entitlement to back pay , so a preliminary injunction order ing that relief is

unnece ssary

. And, reg ardle ss, Miller did not show a probability of succe ss on the merits. His underly ing civil action did not include any claims based on § 7701(b)( 2). Miller asked the district court to g rant the preliminary injunction without “re ly ing on any fac ts rela ti n g to the merits of [hi s] case .” The district court did not abuse its discre tion in deny ing pr eliminary -injunctive re lief base d on a cla im that was not pre sented in the c ase.

I n addition to seeking back pay , Miller also reque sted various forms of nonmonetary relief

. Any claim to interim reinstateme nt was mooted by the Boa rd’s fin al o rd er

. See 5 U.S.C. § 7701(b)( 2)(A) . Miller cannot be retroa ctively reinstated. And M iller’s ot her requests fall outside the scope of interim re lief conte mplated by the Act.

To the extent Miller based his nonmonetary claims not on the Act but on the district court’s g ener al equitable pow ers, the a rg ument was inade quately develope d and ther efor e for feited.

Finally
, any challeng e to the substance of the Boa rd’s final order is outside the scope of this
appea l.The district cour t did not abuse its discretion in deny ing the preliminary injunction.

* * *

This dispositi on is unpublished. S ee D. C

. C IR

. R. 36(d). The Clerk will withhold the mandate until seven day s af t er any timely petition for rehea ring or rehear ing en banc is resolved. See F E D

. R. A P P

. P. 41(b); D.C. C I R

. R. 41(a)( 1).

F OR THE COURT: Mark J. L ang er, Cler

k

BY : /s/ Daniel J. Reidy Deputy Clerk