NOTE: This disposition is nonprecedential.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. 

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2 MYNATT v. MSPB

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 reasons discussed below, we affirm.

BACKGROUND

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 suspend 

Mynatt 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 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 Report related to the charges that had been filed against Mynatt; and (2) a two-page Memorandum of Interview by 

Department 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 agency network when working remotely. Appx. 34.

* “Appx.” refers to the appendix submitted with the 

government’s informal brief.

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MYNATT 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 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 indefinite 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 refiled appeal should not be dismissed as moot. Appx. 2. On 

August 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 due 

process 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 moot 

because 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] Incident 

Report 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 

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4 MYNATT v. MSPB

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

Appx. 36.

On August 30, 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 matter 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. 

§ 1295(a)(9).

DISCUSSION

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 

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 jurisdiction 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 general, “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 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’s 

challenge 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 “committed a due process violation” when it failed 

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MYNATT 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 provided 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 Mynatt’s appeal because he failed to make non-frivolous 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’s 

response 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 the 

right 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. Prot. 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, Mynatt’s response failed to allege facts sufficient to 

show 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]rror 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 

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6 MYNATT v. MSPB

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] reversal”); 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 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) (concluding 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 raise an issue before the 

administrative 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. 

CONCLUSION

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

AFFIRMED

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