UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CLINT WILLIAMS,

Appellant,

v.

GOVERNMENT PRINTING OFFICE,

Agency.

DOCKET NUMBER

DC-0752-14-0117-I-1

DATE: January 16, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*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 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 November 6, 2013, the agency removed the appellant from the 

position of Materials Handler. Initial Appeal File (IAF), Tab 6, Subtab 4b. 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, Tabs 7-8. 

In an initial decision issued without holding the requested hearing, the 

administrative judge dismissed the appeal as moot. IAF, Tab 16, Initial Decision 

(ID) at 1, 4.

¶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. 
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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 14 at 4. The 

agency submitted a declaration from a Human Capital Specialist as confirmation 

that the health insurance carrier had reinstated the appellant’s health insurance. 

IAF, Tab 15 at 4. The appellant did not respond to the agency’s provided

declaration. See ID at 3. The administrative judge found that, given the Human 

Capital Specialist’s “uncontroverted testimony, the agency has further 

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 14 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 
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appellant who shows that he obtained a material alteration of the legal 

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board