Bennington v. Merit Systems Protection Board , 482 F. App'x 550 ( 2012 )

NOTE: This disposition is nonprecedential.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-I-
1, 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 Liti-
gation 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 (collec-
tively, “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-I-
1, -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 Colum-
bus, 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 posi-
tions. 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 posi-
tions as Letter Carriers. 2 In so doing, the Postal Service
also removed all references to the Mail Handler reas-
signments from petitioners’ personnel files, and petition-
ers did not lose any pay or benefits as a result of their
reassignments.
Based on its rescission of the Mail Handler reassign-
ments, 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 author-
ity 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 Au-
gust 24, 2010, in response to the AJ’s comment, petition-
ers 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 reassign-
ments 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 reassign-
ments 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 reassign-
ments. The Board declined to “decide whether the [AJ]
properly dismissed these appeals as moot,” and sua
sponte dismissed petitioners’ appeals “for lack of jurisdic-
tion 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 discre-
tion, 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 differ-
ent 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 estab-
lish 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 repre-
sentative 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 peti-
tioners 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 “elimi-
nated 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 circum-
stances, 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 ser-
vants 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 cer-
tainly a proper issue to raise in the first appeal. Petition-
ers’ 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.