Thorogood v. Navy

• Court: Court of Appeals for the Federal Circuit
• Decided: June 3, 2026
• Docket: 26-1219
• Status: Unpublished

Opinion

Case: 26-1219 Document: 42 Page: 1 Filed: 06/03/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MICHAEL G. THOROGOOD, Petitioner

v.

DEPARTMENT OF THE NAVY, Respondent ______________________

2026-1219 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-0752-24-0319-I-1. ______________________

Decided: June 3, 2026 ______________________

MICHAEL THOROGOOD, Norfolk, VA, pro se.

OLIVER MCDONALD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________

Before REYNA, HUGHES, and STARK, Circuit Judges. PER CURIAM. Case: 26-1219 Document: 42 Page: 2 Filed: 06/03/2026

Michael G. Thorogood appeals a final decision of the Merit Systems Protection Board (“MSPB” or “Board”) sus- taining his indefinite suspension from the United States Department of the Navy (“Navy”). We affirm. I For more than a decade, Mr. Thorogood worked as a Logistics Management Specialist in the Norfolk Naval Shipyard (“Norfolk”), providing supply chain support for the maintenance and repair of naval vessels such as nu- clear submarines. Like all employees at Norfolk, Mr. Tho- rogood’s Logistics Management position required a security clearance. On July 17, 2023, Mr. Thorogood was notified that his “eligibility to access classified information” was being re- voked, “based on [certain] security concerns.” Appx. 21. 1 As a result, on September 5, 2023, the Navy proposed in- definitely suspending him “for failure to meet a condition of employment.” Appx. 31. On October 26, 2023, after counsel submitted written and oral responses contesting the charge, a Navy reviewing officer found that there were grounds for instituting an in- definite suspension. On January 12, 2024, that decision was upheld by the Navy’s Personnel Security Appeals Board (“PSAB”). Mr. Thorogood appealed to the MSPB. On October 3, 2024, after a hearing, an administrative judge (“AJ”) affirmed his indefinite suspension. On No- vember 25, 2025, the Board affirmed the AJ’s decision.

1 “Appx.” refers to the appendix submitted by Mr. Thorogood, ECF No. 21, while “S.A.” refers to the Sup- plemental Appendix attached to the Navy’s brief, ECF No. 27. Case: 26-1219 Document: 42 Page: 3 Filed: 06/03/2026

THOROGOOD v. NAVY 3

Mr. Thorogood timely appealed to this court. The Board had jurisdiction under 5 U.S.C. § 7701. We have ju- risdiction pursuant to 28 U.S.C. § 1295(a)(9). II “Our scope of review in an appeal from a decision of the Board is limited.” Cheney v. Dep’t of Just., 479 F.3d 1343, 1348 (Fed. Cir. 2007). “We will uphold a decision of the MSPB unless it is ‘arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law’ or ‘unsup- ported by substantial evidence.’” Jenkins v. Merit Sys. Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019) (quoting 5 U.S.C. § 7703(c)). “Substantial evidence means such rele- vant evidence as a reasonable mind might accept as ade- quate to support a conclusion.” McIntosh v. Dep’t of Def., 53 F.4th 630, 638 (Fed. Cir. 2022) (internal quotation marks omitted). “On appeal, the petitioner bears the bur- den of establishing error in the Board’s decision.” Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024) (internal quotation marks and alterations omitted). “[I]n a case involving a suspension resulting from the suspension of a security clearance,” “[n]either the Board nor this court may review the underlying merits of an agency’s decision to suspend a security clearance.” Cheney, 479 F.3d at 1351-52; see also Hesse v. Dep’t of State, 217 F.3d 1372, 1376 (Fed. Cir. 2000). Instead, “review of adverse actions stemming from security clearance determi- nations is limited to determining (1) whether a security clearance was denied [or revoked], (2) whether the security clearance was a requirement for appellant’s position, and (3) whether the procedures set forth in [5 U.S.C.] § 7513 were followed.” Hornseth v. Dep’t of the Navy, 916 F.3d 1369, 1373-74 (Fed. Cir. 2019) (internal quotation marks and alteration omitted); see also Gargiulo v. Dep’t of Home- land Sec., 727 F.3d 1181, 1185 (Fed. Cir. 2013). Case: 26-1219 Document: 42 Page: 4 Filed: 06/03/2026

III Mr. Thorogood advances three principal challenges on appeal. First, he contends that the Board erred in finding that his position of Logistics Management Specialist required a security clearance. We disagree. The Board’s finding is supported by substantial evidence, including documentary and testimonial evidence the Navy presented at the hear- ing before the AJ, establishing that Mr. Thorogood’s posi- tion “[r]equires eligibility for access to classified information.” Appx. 72 (“[The] [p]osition requires eligibil- ity for access to Secret, Confidential, or ‘L’ level infor- mation.”); S.A. 52 (“[T]he position that Mr. Thorogood was occupying at the time . . . require[d] eligibility for access [to] classified information.”). The evidence that Mr. Tho- rogood was permitted, at times, to work from home, and that some of his job duties did not involve accessing classi- fied information does not undermine the AJ’s finding that it was a condition of employment that he maintain a secu- rity clearance. Second, Mr. Thorogood asserts that he was denied suf- ficient process under 5 U.S.C. § 7513. The statute “requires the agency to provide notice of denial or revocation of the security clearance; a statement of the reason(s) upon which the negative decision was based; and an opportunity to re- spond,” including with the assistance of an attorney or other representative. Hornseth, 916 F.3d at 1374 (internal quotation marks and alterations omitted); see also 5 U.S.C. § 7513(b)(1)-(4). Substantial evidence supports the Board’s finding that each of these requirements was satisfied here. On September 5, 2023, the Navy issued Mr. Thorogood a “Notice of Proposed Indefinite Suspension,” to take effect “no earlier than thirty (30) calendar days from the date [he] receive[d] th[e] notice.” Appx. 31. It explained the reason for the notice was his “failure to meet a condition of em- ployment, revocation of eligibility for access to classified Case: 26-1219 Document: 42 Page: 5 Filed: 06/03/2026

THOROGOOD v. NAVY 5

information and assignment to sensitive duties.” Id. The notice further advised Mr. Thorogood he had 15 days to re- spond and apprised him of additional rights, including the right to representation and to appeal; he used the subse- quent period to hire an attorney, submit a response, and then present evidence at the AJ hearing. Finally, Mr. Thorogood argues that he was prejudiced by several procedural errors at various phases of his sus- pension proceedings, including that the Navy failed to pro- vide him a union representative and that the AJ made erroneous evidentiary rulings at the hearing. Mr. Tho- rogood, who was represented by an attorney at the hearing, has failed to persuade us that any aspect of that hearing, including the evidentiary rulings, constituted an abuse of discretion or was otherwise not in accordance with law. Thus, we find no merit in Mr. Thorogood’s contentions. IV We have considered Mr. Thorogood’s remaining argu- ments and find them unpersuasive. Accordingly, for the foregoing reasons, we affirm the final decision of the Board. AFFIRMED COSTS No costs.