UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NORTHEASTERN REGIONAL OFFICE 

DIANA M. RUBENS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

PH-0707-16-0081-J-1

DATE: December 2, 2015

Debra L. Roth, Esquire, Conor D. Dirks, Esquire, and Julia H. Perkins, 

Esquire, Washington, D.C., for the appellant.

Jonathan Smith, Esquire, Paul V. Usera, Bedford, Massachusetts, and 

Nicholas E. Kennedy, Esquire, Huntington, West Virginia, for the 

agency.

BEFORE

William L. Boulden

Chief Administrative Judge

FINAL DECISION

On November 27, 2015, appellant, a former career, non-probationary 

Senior Executive Service (SES) Director for the Department of Veterans Affairs 

(VA’s) Veterans Benefits Administration (VBA) Philadelphia Regional Office

(Philadelphia VARO), timely electronically filed an appeal from her November 

20, 2015 removal from the SES and transfer to the General Schedule (GS) 15, 

step 1 position of Regional Assistant Director, Houston VARO, based upon 

alleged misconduct. Appeal File (AF), Tab 1. Appellant’s salary was decreased 

from $181,497.00 to $123,775.00 per annum. AF, Tab 29 (exhibit 1). The Board 
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has jurisdiction under 38 U.S.C. § 713(d)(2)(A),(g)(1)(A) and 5 U.S.C. § 7701. 

See 5 C.F.R. §§ 1210.1, 1210.2(a). This appeal received expedited review as 

required by 38 U.S.C. § 713(e), which meant, among other things, that the appeal 

could not be suspended, dismissed without prejudice, or stayed, and the 

undersigned was required to issue a decision within 21 days after the appeal was 

filed. 38 U.S.C. § 713(e)(3-4); 5 C.F.R. §§ 1210.1(c), 1210.3(a)(3-4). It further 

means that this decision is final and is not subject to any further appeal. 

38 U.S.C. § 713(e)(2); 5 C.F.R. §§ 1210.1(d), 1210.20(b). For the following 

reasons, the appeal is DISMISSED as MOOT. 

MOOTNESS

Even though an action may be within the Board’s jurisdiction, subsequent 

events may render an appeal moot and foreclose the Board’s review. Mootness 

can arise at any stage of litigation, and an appeal will be dismissed as moot when, 

by virtue of an intervening event, the Board cannot grant any effectual relief in 

favor of the appellant, as when the appellant, by whatever means, obtained all of 

the relief she could have obtained had she prevailed before the Board and thereby 

lost any legally cognizable interest in the outcome of the appeal. Price v. U.S. 

Postal Service, 118 M.S.P.R. 222, ¶ 8 (2012). 

However, the agency’s unilateral modification of its personnel action after 

an appeal has been filed cannot divest the Board of jurisdiction, unless the 

appellant consents to such divestiture or the agency completely rescinds the 

action being appealed. For an appeal to be deemed moot, the agency's rescission 

must be complete, i.e., the appellant must be returned to the status quo ante and 

not left in a worse position as a result of the cancellation than she would have 

been in if the matter had been adjudicated and she had prevailed. Id. 

On November 30, 2015, the agency filed a motion to dismiss the appeal as 

moot and to stay case-related deadlines, and attached exhibits showing that the 
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deciding official had rescinded his Notice of Pending Action and Decision Letter, 

and personnel action forms reflected the retroactive cancellation of the action 

taken against appellant. AF, Tab 27. That same day, I denied the motion because 

it was not clear that appellant had been completely restored to the status quo ante

or that she consented to dismissal. AF, Tab 28. 

On December 1, 2015, we had two teleconferences (at 1:00 p.m. and 5:00 

p.m.) to discuss various concerns that appellant had about the issue of full 

restoration (pay and backpay, return to her former position, expungement of 

negative information from her official personnel file, etc.). Ultimately, based 

upon agency affidavits, evidence, and the representations of agency counsel, 

appellant consented to the dismissal of the appeal as moot. AF, Tab 34. 

I note that appellant has not raised defenses of discrimination or 

whistleblowing reprisal, which, because of the possibility of monetary damages, 

could preclude a mootness dismissal. For all of these reasons, it is appropriate to 

dismiss the appeal as moot. 

DECISION

The appeal is DISMISSED as MOOT. 

FOR THE BOARD: ______________________________

William L. Boulden

Chief Administrative Judge

NOTICE TO APPELLANT

Pursuant to 38 U.S.C. § 713(e)(2), this decision is final and not subject to 

any further appeal.