Roger W. Brewer v. United States Postal Service
Background
- Appellant Roger W. Brewer, a Mail Handler, was removed effective October 17, 2015 for unsatisfactory attendance after being AWOL since November 25, 2012; he appealed to the MSPB.
- While the appeal was pending, the Postal Service rescinded the notice of proposed removal and the removal decision and expunged related documents from Brewer’s personnel file.
- The agency informed Brewer he was not required to return immediately because medical documentation indicated he was unable to work for at least 12 months and asked him to return by January 27, 2016, or provide updated medical evidence.
- At a January 15, 2016 status conference Brewer consented to dismissal of his appeal. The administrative judge dismissed the appeal as moot, finding the removal completely rescinded and Brewer restored to the status quo ante (leave status).
- On review Brewer raised new arguments and medical evidence about asthma/allergies and alleged agency failures to assist with disability retirement; the Board declined to consider them as they were raised for the first time on review and were not shown to be new and previously unavailable.
- The Board denied the petition for review and affirmed the initial decision dismissing the appeal as moot because Brewer had received the full relief he could have obtained had he prevailed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MSPB retains jurisdiction after agency rescission of the removal | Brewer argued removal relief still needed; raised new medical/disability issues on review | Agency asserted it rescinded and expunged the removal, reinstated Brewer to leave status, and therefore appeal is moot | Dismissal as moot affirmed: rescission was complete and Brewer consented to dismissal; he received all relief he could have obtained |
| Whether new medical/disability arguments on petition for review warrant relief | Brewer asserts asthma/allergies from work and lack of assistance with disability retirement | Agency opposes; Board notes arguments were not raised below and no showing they were newly available | Board refused to consider new arguments (no showing of new material evidence); even if considered, they would not alter relief available regarding the rescinded removal |
Key Cases Cited
- Himmel v. Department of Justice, 6 M.S.P.R. 484 (1981) (Board loses jurisdiction after agency modification only when appellant consents or agency completely rescinds the action)
- Vidal v. Department of Justice, 113 M.S.P.R. 254 (2010) (appeal may be dismissed as moot when agency rescinds action and appellant receives all relief available)
- Banks v. Department of the Air Force, 4 M.S.P.R. 268 (1980) (Board generally will not consider arguments raised first on petition for review absent new material evidence)