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De Jesus v. Department of Interior

U.S. Court of Appeals, Federal Circuit


February 09, 1999

HENRY C. DE JESUS, PETITIONER,
v.
DEPARTMENT OF INTERIOR, RESPONDENT.

Before Mayer, Chief Judge, Skelton, Senior Circuit Judge, and Clevenger, Circuit Judge.

The opinion of the court was delivered by: Per Curiam.

NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.

Henry C. DeJesus seeks review of the April 28, 1998, initial decision of the Merit Systems Protection Board, Docket No. NY-1221-97-0337-W-3, dismissing his individual right of action as moot. The initial decision became final on June 2, 1998. We affirm.

We must affirm the board's decision unless it is "(1) arbitrary, capricious, an abuse of discretion, 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) (1994). "[T]he Board has the power to dismiss an appeal when it finds that there is no meaningful corrective action available." Bosley v. Merit Sys. Protection Bd., 162 F.3d 665, 669 (Fed. Cir. 1998); see also Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (Where it is "impossible . . . to grant any effectual relief whatever to a prevailing party, the appeal must be dismissed." (quotations omitted)).

DeJesus makes no arguments disputing the administrative Judge's finding that "the Board would not be able to grant him effective relief" given that the position to which he sought reassignment was eliminated in a reduction in force (RIF) in June 1997, and that he had applied for and received one hundred percent disability retirement benefits in May 1997. If DeJesus were to prove that his reassignment in October 1995 was retaliatory, his relief would be reassignment to his original position. As a result of the RIF, however, this position no longer exists. Furthermore, because he is one hundred percent disabled, he would not be able to fill the position, even if the agency had not eliminated it. Therefore, the remedy of reinstatement is not available. A monetary remedy is also unavailable because DeJesus has not shown that he suffered monetary damages as a result of the transfer. The new position carried the same pay grade and step as his original one and the Office of Personnel Management approved DeJesus' application for disability retirement. Accordingly, the board's finding that it would not be able to grant DeJesus effective relief is supported by substantial evidence and is otherwise in accordance with law.

19990209


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