N OTE : This disposition is nonprecedential.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 1 2 , 2022

______________________

K ENNETH J. M YNATT , Goodlettsville, TN, pro se.

C ALVIN M. M ORROW

, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC, for respondent. Also represented by T RISTAN L. L EAVITT

, K

ATHERINE M ICHELLE S MITH

.

______________________

Before L OURIE

, M AYER

, and C HEN

, Circuit Judges

.
P ER C URIAM

. Case: 22-1241 Document: 23 Page: 1 Filed: 05/12/2022MYNATT v. MSPB 2

Kenneth J. Myna tt 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 reasons discussed below, we affirm.

B ACKGROUND

Mynatt is employed by the Internal Revenue Service (“agency”). Appx. 1. * On October 30, 2020, Mynatt informed his supervisor that he had been “charged with aggravated 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 suspendMynatt for an indefinite period, stating that it had reasonable 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 indefi nitely 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 Report related to the charges that had been filed against Mynat t; and (2) a two

- page Memorandum of Interview byDepartment of the Treasury Special Agent Crystal Albright. Appx. 33. On February 3, 2021, the agency removed Mynatt’s access to ERAP, a system which allows agency employees to securely connect to the agenc y network when working remotely. Appx. 34.

* “Appx.” refers to the appendix submitted with the government’s informal brief. Case: 22-1241 Document: 23 Page: 2 Filed: 05/12/2022MYNATT v. MSPB 3

After the agency decided to suspend Mynatt, he appealed 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 refil ed 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, theagency submitted evidence showing that Mynatt’s indefinite suspension had been rescinded and he had returned to work. Appx. 2.

On August 5, 2021, an administrative judge issued ashow cause order directing Mynatt to explain why his refiled appeal should not be dismissed as moot. Appx. 2. OnAugust 13, 2021, Mynatt, through counsel, submitted a response to this show cause order. Appx. 31. In this response, he asserted that his appeal was not moot because the agency “violated [his] substantive and procedural dueprocess rights” when it failed to provide him with the materials it relied upon when proposing that he be indefinitely suspended. Appx. 31.

On August 26, 2021, the agency replied to Mynatt’s response. Appx. 32. It argued that Mynatt’s appeal was mootbecause the agency had, in fact, provided him with the materials it had relied upon in proposing his indefinite suspension. 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 Mynatt 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] Inc identReport at the time he was suspended would strain credulity.” Appx. 36. Additionally, the agency stated that even if Mynatt were able to demonstrate procedural error, he Case: 22-1241 Document: 23 Page: 3 Filed: 05/12/2022MYNATT v. MSPB 4

had “not alleged that the error was harmful in any way.” Appx. 36.

On August 3 0, 2021, the administrative judge dismissed 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 matte r had been adjudicated 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 review by this court. We have jurisdiction under 28 U.S.C. § 1 295(a)(9).

D ISCUSSION

Our jurisdiction to review board decisions is circumscribed 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

la w; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” Id . Whether the board has jurisdiction to adjudicate an appeal is a question of law which we

review de novo. See J ohnston v. Merit Sys. Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008).

The sole issue presented on appeal is whether theboard correctly dismissed Mynatt’s appeal as moot. In general, “a case is moot when the issues presented are no longer ‘live’ or the par ties 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 rescinded his indefinite suspension and directed him to return to work. See Jenkins v. Merit Sys. Prot . Bd. , 911 F.3d 1370, 1374 (Fed. Cir. 2019) (concluding that a claimant’schallenge to his removal became moot after the agency rescinded the removal action). He asserts, however, that the board erred in dismissing his appeal as moot because the agency “c ommitted a due process violation” when it failed Case: 22-1241 Document: 23 Page: 4 Filed: 05/12/2022MYNATT v. MSPB 5

to provide him with the materials it relied upon in proposing 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 provide d Mynatt wi th 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 Mynatt’s appeal because he failed to make non

- frivo lous allegations 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 failing to provide him with the materials it relied upon in proposing his suspension. Appx. 31. Because Mynatt’sresponse did not explain how he suffered prejudice as a result 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 theright to present an argument in support of board jurisdiction by failing to properly present that argument to the administrative judge); see also Bledsoe v. Merit Sys. Pro t. Bd

.,659 F.3d 1097, 1102 (Fed. Cir. 2011) (explaining that “a petitioner 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, Myna tt’s response failed to allege facts sufficient toshow that the agency would have reached a different conclusion on whether to suspend him in the absence of the purported procedural error. See 5 C.F.R. § 1201.4(r) (defining “[h]armful error” as an “[e]rr or by the agency in the application 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: 5 Filed: 05/12/2022MYNATT v. MSPB 6

have reached in the absence or cure of the error”); Ward v.
USPS , 634 F.3d 1274, 1281 (Fed. Cir. 2011) (emp hasizing that the board is “required to run a harmless error analysisto determine whether [a] procedural error require[s] reversal”); Diaz v. Dep’t of the Air Force , 63 F.3d 1107, 1109 (Fed. Cir. 1995) (explaining that “an employee challenging an

agency a ction 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 argumentby failing to specifically raise the back pay issue in response 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) (co ncluding that a claimant forfeited an argument 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 rais e an issue before theadministrative judge if the issue is to be preserved for review in this court”). We have considered Mynatt’s remaining arguments but do not find them persuasive.

C ONCLUSION

Accordingly, the decision of the Merit Systems Protection Board is affirmed.

AFFIRMED Case: 22-1241 Document: 23 Page: 6 Filed: 05/12/2022