The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY ANN VARNADO, DOCKET NUMBER
Appellant, AT-0752-13-0039-M-1
v.
DEPARTMENT OF JUSTICE, DATE: January 6, 2017
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Hewitt Smith, Tampa, Florida, for the appellant.
Marcia N. Tiersky, Esquire, Springfield, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which dismissed as moot her appeal from the denial of a within-grade increase
(WIGI). For the reasons discussed below, we GRANT the appellant’s petition for
review, VACATE the remand initial decision, and REMAND the case to the
regional office for further adjudication in accordance with this Order.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
BACKGROUND
¶2 The appellant held the position of Criminal Investigator with the agency’s
Drug Enforcement Administration. Varnado v. Department of Justice, MSPB
Docket No. AT-0752-13-0039-M-1, Remand File (RF), Tab 22 at 9. In
February 2007, the agency withheld her scheduled WIGI pending the completion
of a performance improvement plan. RF, Tab 21 at 107. The appellant
challenged the action through the equal employment opportunity (EEO) process.
RF, Tab 34 at 42. In September 2007, the agency removed the appellant for
unacceptable performance. RF, Tab 22 at 9.
¶3 After EEO proceedings before the agency, the U.S. District Court for the
Southern District of Florida, and the U.S. Court of Appeals for the Eleventh
Circuit, the appellant filed a Board appeal. Varnado v. Department of Justice,
MSPB Docket No. AT-0752-13-0039-I-1, Initial Appeal File (IAF), Tab 1, Tab 7
at 19; Varnado v. Department of Justice, MSPB Docket No. AT-0752-13-0039-
L-1, Litigation File, Tab 9, Appendix at 57-66. The administrative judge
dismissed the removal claim as untimely filed without good cause shown. IAF,
Tab 11, Initial Decision at 1, 4-5. On review, the Board affirmed the
administrative judge’s timeliness determination and noted that “[t]he appellant []
presented no evidence that she received a reconsideration decision, a
jurisdictional prerequisite for an appeal of a denial of a [WIGI].” Varnado v.
Department of Justice, MSPB Docket No. AT-0752-13-0039-I-1, Final Order at 2,
6 n.4 (Mar. 4, 2014).
¶4 Following the Board’s decision, the appellant appealed the decision to the
U.S. Court of Appeals for the Federal Circuit (Federal Circuit). Varnado v. Merit
Systems Protection Board, 603 F. App’x 963 (Fed. Cir. 2015). The Federal
Circuit agreed with the Board regarding the dismissal of the removal claim, but
remanded the WIGI denial claim to the Board to inform the appellant of the
elements of her jurisdictional burden of proof and provide her with an opportunity
to establish jurisdiction over the WIGI denial. Id. at 967-69.
3
¶5 Following a determination by the administrative judge on remand that the
Board had jurisdiction over the denial of the appellant’s WIGI, the agency
granted the appellant a retroactive WIGI, paid her back pay, including interest,
and filed a motion to dismiss the appeal as moot. RF, Tabs 19, 26, 32. The
administrative judge ordered the appellant to show cause why the appeal should
not be dismissed as moot. RF, Tab 33. The appellant responded. RF, Tab 34.
¶6 In a remand initial decision, the administrative judge found that the
appellant received the relief to which she would have been entitled to receive if
she had prevailed on her WIGI denial claim, and thus, he dismissed the appeal as
moot. RF, Tab 36, Remand Initial Decision (RID) at 1, 3-4. Contrary to the
appellant’s arguments, he found that the Federal Circuit’s decision does not
require or authorize the Board to reopen her removal appeal. RID at 3.
¶7 The appellant has filed a petition for review. Varnado v. Department of
Justice, MSPB Docket No. AT-0752-13-0039-M-1, Remand Petition for Review
(RPFR) File, Tabs 4, 6. The agency has filed a response, and the appellant has
replied. RPFR File, Tabs 8-9.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 A case is moot when the issues presented are no longer “live” or the parties
lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal
Service, 2016 MSPB 40, ¶ 8. An appeal will be dismissed as moot if, by virtue of
an intervening event, the Board cannot grant any effectual relief in favor of the
appellant. Id. Thus, an agency’s complete rescission of the action appealed, and
an appellant’s restoration to the status quo ante, may render an appeal moot. Id.
However, if an appellant raises a claim for compensatory damages that the Board
has jurisdiction to adjudicate, the agency’s complete rescission of the action
appealed does not afford her all of the relief available before the Board and thus
the appeal is not moot. Id.
4
¶9 As noted previously, the appellant filed an EEO complaint regarding the
denial of her WIGI. RF, Tab 34 at 42. On review, the appellant claims
entitlement to compensatory damages. RPFR File, Tab 4 at 5, 12, Tab 9 at 2, 7.
Because the appellant could have been entitled to compensatory damages based
on her discrimination claims, the administrative judge erred by failing to consider
them below. See Hess, 2016 MSPB 40, ¶ 20 (finding that the Board has the
authority to award compensatory damages); 5 C.F.R. §§ 1201.201(d),
1201.202(c). Therefore, we vacate the remand initial decision dismissing the
appeal as moot and remand the appeal for further adjudication of the appellant’s
discrimination and compensatory damages claims. See, e.g., Antonio v.
Department of the Air Force, 107 M.S.P.R. 626, ¶¶ 1, 13-15 (2008) (vacating the
initial decision that dismissed the appellant’s removal appeal as moot and
remanding the appeal for further adjudication of his discrimination and potential
compensatory damages claims). 2
¶10 On remand, the administrative judge shall apprise the appellant of her
burdens of proof on her discrimination claims and allow the parties to present
evidence and argument on these claims. See id., ¶ 15. If necessary, he should
also hold a hearing on her discrimination claims. IAF, Tab 1 at 2; see Hess v.
U.S. Postal Service, 123 M.S.P.R. 183, ¶¶ 9-10 (2016) (remanding the appellant’s
discrimination claims for a hearing because she raised a cognizable claim of
discrimination in connection with an otherwise appealable action).
2
Because compensatory damages are not authorized for age discrimination claims, the
administrative judge need not address the appellant’s age discrimination claim on
remand. Antonio, 107 M.S.P.R. 626, ¶ 13.
5
ORDER
¶11 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.