Lester L. Burwell, Petitioner, v. Department of Agriculture, Respondent, 854 F.2d 1327 (Fed. Cir. 1988)

Annotate this Case
US Court of Appeals for the Federal Circuit - 854 F.2d 1327 (Fed. Cir. 1988) July 13, 1988

Before ARCHER, Circuit Judge, BALDWIN, Senior Circuit Judge, and MAYER, Circuit Judge.


The Merit Systems Protection Board (MSPB or board), in its opinion and order dated January 29, 1988, Docket No. SF03308710419, dismissed petitioner's appeal as moot. We affirm the board's dismissal for mootness.

In response to the board's show cause order regarding apparent mootness, the agency submitted documentation showing that petitioner's reemployment priority right had been satisfied by a retroactive appointment with a back pay determination. Although petitioner asserted that he was qualified for another eligible position and that other unspecified positions had been filled, the board found that he "has not identified the other positions ... and has presented no factual information regarding any ongoing violation of his reemployment priority rights." The board also found that the only relief requested had been satisfied by the retroactive appointment.

In this court, petitioner contends he was entitled to appointment to a higher position outside of his commuting area, or to the "highest job filled in Region 5" and that he is "sure higher positions were filled." These contentions lack merit, 5 C.F.R. Sec. 351.001, and were not properly raised before the board. Meglio v. Merit Sys. Protection Bd., 758 F.2d 1576 (Fed. Cir. 1984). He also asserts that the board decision is incorrect because of the agency's treatment of severance pay as an offset in the back pay determination. Again, this argument was not raised before the board and we will not consider it for the first time on appeal. Id.