Case: 22-1024 Document: 59 Page: 1 Filed: 04/27/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MALCOLM TOBY, SUBSTITUTED FOR ALPHONSO
R. TOBY,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2022-1024
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-15-0289-B-1.
______________________
Decided: April 27, 2023
______________________
RALPH B. PINSKEY, Law Offices of Ralph B. Pinskey,
Harrisburg, PA, argued for petitioner.
ANTHONY F. SCHIAVETTI, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent. Also repre-
sented by REGINALD THOMAS BLADES, JR., BRIAN M.
BOYNTON, PATRICIA M. MCCARTHY.
______________________
Case: 22-1024 Document: 59 Page: 2 Filed: 04/27/2023
2 TOBY v. DVA
Before PROST, REYNA, and CUNNINGHAM, Circuit Judges.
REYNA, Circuit Judge.
Alphonso R. Toby petitions for review of a decision of
the Merit Systems Protection Board (“Board”) that re-
versed his removal for misconduct from his position with
the Department of Veterans Affairs (“VA”). The VA op-
poses the petition. Mr. Toby replies. For the reasons stated
below, we dismiss Mr. Toby’s petition as moot.
BACKGROUND
Mr. Toby’s challenge before the Board concerns his
2013 termination from the VA, which has a lengthy history,
and which we recite only as necessary here. 1
Mr. Toby worked at a medical facility for the VA as a
housekeeping aid. Appx2. He was hired for a period of one
year and two days, and he began working in his position on
February 26, 2012, with an end-date of February 27, 2013.
Appx2; SAppx1–2. 2 On February 25, 2013, two days before
the position term expired, the VA terminated Mr. Toby for
misconduct. Appx 2, 23. Mr. Toby appealed his termina-
tion to the Board, alleging that his termination was a vio-
lation under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (“USERRA”),
38 U.S.C.
§ 4301–4333. Petitioner’s Op. Br. 4; Appx14–23. Correc-
tive action was denied by the administrative judge (“AJ”).
Appx43–46. Mr. Toby petitioned for review by the full
Board and, on April 2, 2015, the Board affirmed the AJ’s
denial of corrective action. Appx51. The Board’s decision
recognized that Mr. Toby’s petition asserted two claims: a
USERRA violation and a removal without due process
1 Mr. Malcom Toby is now the substitute petitioner
for his father, Mr. Alphonso Toby. Petitioner’s Reply Br. 1.
2 “SAppx” refers to Respondent’s supplemental ap-
pendix.
Case: 22-1024 Document: 59 Page: 3 Filed: 04/27/2023
TOBY v. DVA 3
under
5 U.S.C. § 7513.
Id. Accordingly, the Board for-
warded the matter to the regional office (“RO”) to consider
the latter claim involving whether Mr. Toby was an “em-
ployee” under
5 U.S.C. § 7511 with Chapter 75 rights.
Id.
On December 30, 2015, the AJ issued an initial decision
dismissing the appeal as both untimely and filed without
good cause, finding that only the USERRA claim was
raised. Appx52–56. Mr. Toby again filed for review. Re-
spondent’s Br. 4. The Board granted the petition on Sep-
tember 23, 2016, vacated the AJ’s initial decision, and
remanded the appeal to the AJ to address whether Mr.
Toby was a “preference-eligible excepted service employee”
under
5 U.S.C. § 7511. Appx57–63.
While the matter was on remand, but before the AJ is-
sued his decision, the VA rescinded Mr. Toby’s misconduct
removal. SAppx5. The VA sent Mr. Toby a letter informing
him that the removal was cancelled, and he would be com-
pensated for the 16 hours of work he would have completed
had the removal not occurred.
Id. Additionally, because
Mr. Toby did not receive a recommendation from his super-
visor, which was necessary to “convert” his position to a
“career” or “permanent” appointment, the letter explained
that the position was effectively terminated on February
25, 2013. SAppx 1, 4–5.
But, four days after the VA’s decision to rescind the re-
moval, the AJ issued his decision, finding that Mr. Toby
had completed a full year of service and was a preference-
eligible service employee under Chapter 75. Appx2–3.
Thus, the Board found it had jurisdiction over Mr. Toby’s
appeal concerning the second claim, the Chapter 75 proce-
dural rights, and reversed his removal.
Id. The VA then
moved to dismiss Mr. Toby’s appeal as moot because of the
VA’s recission of the removal, to which Mr. Toby argued
that he was not restored to a permanent position and the
appeal was not moot. SAppx7–9, 11.
Case: 22-1024 Document: 59 Page: 4 Filed: 04/27/2023
4 TOBY v. DVA
The VA’s motion and Mr. Toby’s opposition were re-
turned by the AJ because they were received after issuance
of the initiation decision. SAppx 18. The Office of the Clerk
of the Board received these submissions from the Board’s
regional office and docketed these submissions as a petition
and cross-petition for review, respectively.
Id. The Board,
however, lacked a quorum of judges, so the motion to dis-
miss and Mr. Toby’s petition for review and cross-petition
for review of the initial decision remained pending.
SAppx20. On June 21, 2021, Mr. Toby petitioned this court
for a writ of mandamus, seeking an order to direct the
Board to remand the appeal to the AJ for further proceed-
ings. Petition for Writ of Mandamus, ECF No. 2, In re:
Toby, No. 21-157 (Fed. Cir. Jun. 22, 2021). This court is-
sued an order stating that it would deny mandamus unless
Mr. Toby withdrew his petition for review with the Board.
Order at 5, ECF No. 25, In re: Toby, No. 21-157 (Fed. Cir.
Sep. 10, 2021). Mr. Toby withdrew the petition for review,
and, on October 7, 2021, this court construed the matter as
a petition for review of the Board’s final decision.
Id.
DISCUSSION
This court’s judicial review of a Board decision is nar-
rowly defined and limited by statute. Under
5 U.S.C.
§ 7703, we affirm a Board decision unless it is arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; obtained without procedures required
by law, rule, or regulation having been followed; or unsup-
ported by substantial evidence. See Einboden v. Dep’t of
Navy,
802 F.3d 1321, 1324 (Fed. Cir. 2015). The petitioner
bears the burden of establishing reversible error in the
Board’s decision. McCrary v. Office of Pers. Mgmt.,
459
F.3d 1344, 1347 (Fed. Cir. 2006). “The party asserting ju-
risdiction bears the burden to show, by a preponderance of
the evidence, that the Board had jurisdiction.” Mouton-
Miller v. Merit Sys. Prot. Bd.,
985 F.3d 864, 869 (Fed. Cir.
2021). But, “[i]f an appealable action is cancelled or re-
scinded by the agency, any appeal from that action becomes
Case: 22-1024 Document: 59 Page: 5 Filed: 04/27/2023
TOBY v. DVA 5
moot,” which deprives the Board from having jurisdiction.
Jenkins v. Merit Sys. Prot. Bd.,
911 F.3d 1370, 1373 (Fed.
Cir. 2019) (quoting Cooper v. Dep’t of the Navy,
108 F.3d
324, 326 (Fed. Cir. 1997)). For an appeal to be moot, an
employee must have received all of the relief that he could
have received if the matter had been adjudicated and he
had prevailed. Id.; see also Holleman v. Merit Sys. Prot.
Bd.,
629 F. App’x 942, 948 (Fed. Cir. 2015). Dismissal of
an appeal as moot equates to a dismissal for lack of juris-
diction because, in such cases, there is no final decision
from which to appeal nor grounds for the Board to retain
jurisdiction. See Wells v. Merit Sys. Prot. Bd.,
730 F. App’x
909, 911 (Fed. Cir. 2018).
Mr. Toby argues that he is a “statutory employee” who
is entitled to “regularization” from the agency and his peti-
tion for relief requests backpay for a minimum of 30 days
and “reinstatement to employment.” Petitioner’s Op. Br.
at 1, 4; Petitioner’s Reply Br. 3. Mr. Toby seeks a remand
to the AJ for attorneys’ fees. Petitioner’s Reply Br. 3–4. 3
We, however, hold that Mr. Toby received all the relief that
he was eligible for as a temporary Chapter 75 employee.
The VA has promised to pay Mr. Toby for the sixteen hours
of work (plus interest) that he was unable to perform due
to his now-rescinded misconduct removal, and the VA will
fulfill that promise if it has not yet done so. Oral Arg. at
13:16–53. Mr. Toby has not met his burden to demonstrate
3 As the issue of attorneys’ fees was first raised in
Petitioner’s reply brief, it is waived. See Novosteel SA v.
United States,
284 F.3d 1261, 1274 (Fed. Cir. 2002) (“Rais-
ing the issue for the first time in a reply brief does not suf-
fice . . . they do not provide the moving party with a new
opportunity to present yet another issue for the court’s con-
sideration . . . . As a matter of litigation fairness and pro-
cedure, then, we must treat this argument as waived.”).
Case: 22-1024 Document: 59 Page: 6 Filed: 04/27/2023
6 TOBY v. DVA
eligibility for additional relief. This court lacks jurisdiction
over the appeal because it is moot.
CONCLUSION
For the foregoing reasons, the petition is dismissed.
DISMISSED
COSTS
No costs.
