NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
EMMANUEL S. SAXIONES,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2017-2308
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0831-17-0169-I-1.
______________________
Decided: May 15, 2018
______________________
NORMAN JACKMAN, Jackman & Roth, LLP, Lincoln,
NH, argued for petitioner.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, argued
for respondent. Also represented by KATHERINE M.
SMITH.
______________________
Before NEWMAN, LOURIE, and STOLL, Circuit Judges.
2 SAXIONES v. MSPB
LOURIE, Circuit Judge.
Emmanuel S. Saxiones (“Saxiones”) appeals from the
decision of the Merit Systems Protection Board (the
“Board”) dismissing his appeal for lack of jurisdiction.
Saxiones v. Office of Pers. Mgmt., No. DA-0831-17-0169-I-
1, slip op. (M.S.P.B. Apr. 14, 2017). Because we conclude
Saxiones’s appeal is moot, we dismiss.
The primary issue before the administrative judge
(“AJ”) was whether Saxiones was entitled to make a
deposit in order to receive credit relating to his retirement
annuity for his post-1956 military service. The U.S.
Office of Personnel Management (“OPM”) had not ren-
dered a final decision on this issue, and the AJ concluded
that no exception to the finality requirement applied,
even though Saxiones’s case remained unresolved over
four years after he had filed his initial appeal to make a
military service deposit. Accordingly, the AJ dismissed
Saxiones’s appeal for lack of jurisdiction. Id., slip op. at
3–5. Saxiones did not appeal that decision to the Board,
so the AJ’s decision became that of the Board. This
appeal followed.
Shortly before oral argument in the present appeal,
OPM calculated the deposit due for Saxiones’s military
service, agreed to pay Saxiones the amount he was un-
derpaid during the period of March 1, 2013 through
March 31, 2018, and stated that annuity payments going
forward would be calculated with credit given to Saxi-
ones’s military service. Board’s Notice of Supplemental
Authority at 2–3, Saxiones v. Merit Sys. Prot. Bd., No.
2017-2308 (Fed. Cir. Apr. 24, 2018), ECF No. 47. Based
on OPM’s letter, the Board requests that we dismiss the
appeal as moot. Id. at 1. Saxiones responds that other
issues remain, including the proper calculation of pre-
judgment interest, attorney fees, and his “High-Three,” so
the case is not moot. Saxiones Response to Board’s Notice
SAXIONES v. MSPB 3
of Supplemental Authority, Saxiones v. Merit Sys. Prot.
Bd., No. 2017-2308 (Fed. Cir. Apr. 26, 2018), ECF No. 49.
We agree with the Board and dismiss the appeal as
moot. It appears that OPM has granted Saxiones the
relief he seeks regarding the deposit, so there is no longer
a live case or controversy on that issue before us. See
DeFunis v. Odegaard,
416 U.S. 312, 316 (1974) (“[F]ederal
courts are without power to decide questions that cannot
affect the rights of litigants in the case before them.”
(internal quotation marks omitted)); Nasatka v. Delta Sci.
Corp.,
58 F.3d 1578, 1580 (Fed. Cir. 1995) (“If an event
occurs while a case is pending on appeal that makes it
impossible for the court to grant ‘any effectual relief
whatever’ to a prevailing party, the appeal must be dis-
missed as moot.” (quoting Church of Scientology v. United
States,
506 U.S. 9, 12 (1992))). The other issues men-
tioned by Saxiones were not properly before the AJ and
accordingly neither OPM nor the AJ decided them on the
merits during the course of this appeal. We do not resolve
them here in the first instance.
If Saxiones has additional challenges to OPM’s annui-
ty determinations or to its timely compliance with the
assurances in its recent letter, then he may pursue them
in the proper course. Given the substantial delay in this
case that has already occurred, we expect OPM to now
proceed expeditiously in fulfilling its obligations.
CONCLUSION
For the foregoing reasons, we dismiss the appeal as
moot.
DISMISSED
COSTS
Costs to Saxiones.
