Mynatt v. MSPB

• Court: Court of Appeals for the Federal Circuit
• Decided: May 12, 2022
• Docket: 22-1241
• Status: Unpublished

Opinion

Case: 22-1241 Document: 23 Page: 1 Filed: 05/12/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

KENNETH J. MYNATT, Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________

2022-1241 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-0752-21-0278-I-2. ______________________

Decided: May 12, 2022 ______________________

KENNETH J. MYNATT, Goodlettsville, TN, pro se.

CALVIN M. MORROW, Office of General Counsel, United States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by TRISTAN L. LEAVITT, KATHERINE MICHELLE SMITH. ______________________

Before LOURIE, MAYER, and CHEN, Circuit Judges. PER CURIAM. Case: 22-1241 Document: 23 Page: 2 Filed: 05/12/2022

Kenneth J. Mynatt seeks review of a final decision of the Merit Systems Protection Board (“board”) dismissing his appeal as moot. See Mynatt v. Dep’t of the Treas., No. AT-0752-21-0278-I-2 (M.S.P.B. Aug. 30, 2021). For the rea- sons discussed below, we affirm. BACKGROUND Mynatt is employed by the Internal Revenue Service (“agency”). Appx. 1. * On October 30, 2020, Mynatt in- formed his supervisor that he had been “charged with ag- gravated domestic assault and reckless endangerment, both felonies,” but that he had retained counsel and planned to “vigorously defend” against the charges. Appx. 33. On February 1, 2021, the agency proposed to suspend Mynatt for an indefinite period, stating that it had reason- able cause to believe that he might be guilty of a crime for which a sentence of imprisonment could be imposed. Appx. 15. Later that day, Mynatt contacted Alicen Jones, who worked in the agency’s human resources department, and asked her to email him a copy of the materials the agency had relied upon in proposing to indefinitely suspend him. Appx. 33. Less than thirty minutes later, Jones emailed Mynatt the materials he had requested. Appx. 33. These materials consisted of: (1) an eight-page Police Incident Re- port related to the charges that had been filed against My- natt; and (2) a two-page Memorandum of Interview by Department of the Treasury Special Agent Crystal Al- bright. Appx. 33. On February 3, 2021, the agency re- moved Mynatt’s access to ERAP, a system which allows agency employees to securely connect to the agency net- work when working remotely. Appx. 34.

* “Appx.” refers to the appendix submitted with the government’s informal brief. Case: 22-1241 Document: 23 Page: 3 Filed: 05/12/2022

MYNATT v. MSPB 3

After the agency decided to suspend Mynatt, he ap- pealed to the board. On April 6, 2021, an administrative judge of the board dismissed the appeal, without prejudice, at Mynatt’s request. Appx. 24. Mynatt refiled his appeal in July 2021, submitting “evidence that the criminal charges against him had been nolle prossed” and that his record had been expunged. Appx. 2. Soon thereafter, the agency submitted evidence showing that Mynatt’s indefi- nite suspension had been rescinded and he had returned to work. Appx. 2. On August 5, 2021, an administrative judge issued a show cause order directing Mynatt to explain why his re- filed appeal should not be dismissed as moot. Appx. 2. On August 13, 2021, Mynatt, through counsel, submitted a re- sponse to this show cause order. Appx. 31. In this re- sponse, he asserted that his appeal was not moot because the agency “violated [his] substantive and procedural due process rights” when it failed to provide him with the ma- terials it relied upon when proposing that he be indefinitely suspended. Appx. 31. On August 26, 2021, the agency replied to Mynatt’s re- sponse. Appx. 32. It argued that Mynatt’s appeal was moot because the agency had, in fact, provided him with the ma- terials it had relied upon in proposing his indefinite sus- pension. In support, the agency submitted evidence showing that it had emailed Mynatt these materials and that he had had nearly forty-eight hours to review and copy these materials before his access to the ERAP system was revoked. Appx. 35. The agency further asserted that because it was My- natt himself who had notified the agency that he had been charged with two crimes and had retained counsel, “any claim . . . that he did not already have the [Police] Incident Report at the time he was suspended would strain credu- lity.” Appx. 36. Additionally, the agency stated that even if Mynatt were able to demonstrate procedural error, he Case: 22-1241 Document: 23 Page: 4 Filed: 05/12/2022

had “not alleged that the error was harmful in any way.” Appx. 36. On August 30, 2021, the administrative judge dis- missed Mynatt’s appeal as moot, stating that “there [was] no dispute that the agency completely rescinded [Mynatt’s] indefinite suspension and that [he] ha[d] received all the relief he could have received if this matter had been adju- dicated and he had prevailed.” Appx. 3 (footnote omitted). After the administrative judge’s decision became the final decision of the board, see Appx. 3, Mynatt petitioned for re- view by this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION Our jurisdiction to review board decisions is circum- scribed by statute. See 5 U.S.C. § 7703(c). We must affirm a board 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.” Id. Whether the board has jurisdic- tion to adjudicate an appeal is a question of law which we review de novo. See Johnston v. Merit Sys. Prot. Bd., 518 F.3d 905, 909 (Fed. Cir. 2008). The sole issue presented on appeal is whether the board correctly dismissed Mynatt’s appeal as moot. In gen- eral, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Here, Mynatt does not dispute that the agency re- scinded his indefinite suspension and directed him to re- turn to work. See Jenkins v. Merit Sys. Prot. Bd., 911 F.3d 1370, 1374 (Fed. Cir. 2019) (concluding that a claimant’s challenge to his removal became moot after the agency re- scinded the removal action). He asserts, however, that the board erred in dismissing his appeal as moot because the agency “committed a due process violation” when it failed Case: 22-1241 Document: 23 Page: 5 Filed: 05/12/2022

MYNATT v. MSPB 5

to provide him with the materials it relied upon in propos- ing to indefinitely suspend him. Pet’r Inf. Br. 4; see 5 C.F.R. § 752.404(b)(1). In response, the agency asserts that it promptly pro- vided Mynatt with the materials it relied upon in proposing his suspension. It contends, moreover, that Mynatt has not shown that any alleged procedural error was harmful. We conclude that the board correctly dismissed My- natt’s appeal because he failed to make non-frivolous alle- gations of fact that could support a finding that his appeal was not moot. See 5 C.F.R. § 1201.56(b)(2)(i)(A) (stating that the petitioner bears the burden of establishing board jurisdiction). In response to the board’s show cause order, Mynatt stated, through counsel, that his “appeal should not be dismissed as moot because the [a]gency violated [his] substantive and procedural due process rights” by fail- ing to provide him with the materials it relied upon in pro- posing his suspension. Appx. 31. Because Mynatt’s response did not explain how he suffered prejudice as a re- sult of this alleged procedural error, however, he failed to establish that the board had jurisdiction over his appeal. See Meglio v. Merit Sys. Prot. Bd., 758 F.2d 1576, 1577–78 (Fed. Cir. 1984) (concluding that the petitioner waived the right to present an argument in support of board jurisdic- tion by failing to properly present that argument to the ad- ministrative judge); see also Bledsoe v. Merit Sys. Prot. Bd., 659 F.3d 1097, 1102 (Fed. Cir. 2011) (explaining that “a pe- titioner must meet the threshold requirement of making non-frivolous allegations of fact which, if true, would be sufficient to establish the [b]oard’s jurisdiction”). In this regard, Mynatt’s response failed to allege facts sufficient to show that the agency would have reached a different con- clusion on whether to suspend him in the absence of the purported procedural error. See 5 C.F.R. § 1201.4(r) (defin- ing “[h]armful error” as an “[e]rror by the agency in the ap- plication of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would Case: 22-1241 Document: 23 Page: 6 Filed: 05/12/2022

have reached in the absence or cure of the error”); Ward v. USPS, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (emphasizing that the board is “required to run a harmless error analysis to determine whether [a] procedural error require[s] rever- sal”); Diaz v. Dep’t of the Air Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995) (explaining that “an employee challenging an agency action has the burden to prove that a violation of a statutory procedure was harmful”). On appeal, Mynatt contends that his claim is not moot because he is entitled to back pay for the period when he was suspended without pay. See Pet’r Inf. Reply Br. 1–3. We conclude, however, that Mynatt waived this argument by failing to specifically raise the back pay issue in re- sponse to the board’s show cause order. See Appx. 31; see also Sistek v. Dep’t of Veterans Affs., 955 F.3d 948, 953 n.1 (Fed. Cir. 2020) (concluding that a claimant forfeited an ar- gument by “fail[ing] to present it to the Administrative Judge in the first instance”); Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998) (explaining that “[a] party in [a board] proceeding must raise an issue before the administrative judge if the issue is to be preserved for re- view in this court”). We have considered Mynatt’s remain- ing arguments but do not find them persuasive. CONCLUSION Accordingly, the decision of the Merit Systems Protec- tion Board is affirmed. AFFIRMED