UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL P. DUGAS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

PH-0752-18-0104-I-1

DATE: February 1, 2024

THIS ORDER IS NONPRECEDENTIAL1

Amanda Moreno, Esquire, and Gary Poretsky, Esquire, Houston, Texas, 

for the appellant.

Scott W. Flood, Esquire, Portsmouth, New Hampshire, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

affirmed his removal. For the reasons discussed below, we GRANT the

appellant’s petition for review, VACATE the initial decision, and REMAND the

case to the regional office for further adjudication in accordance with this

Remand Order. 

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND

The appellant held the position of Welder at the Portsmouth Naval

Shipyard. Initial Appeal File (IAF), Tab 5 at 28-30. In September 2016, officers

from the Kittery Police Department responded to a domestic disturbance that

occurred while the appellant was off-duty, involving him and his brother. E.g.,

IAF, Tab 6 at 110-12. Generally speaking, witness statements indicate that this

altercation included the appellant firing a gun several times, without hitting

anything of consequence, and his brother striking the appellant’s vehicle with an

ax. Id. Police arrested both. IAF, Tab 6 at 112, Tab 50 at 19. In the days that

followed, the agency barred the appellant from the shipyard and placed him in a

non-duty pay status. IAF, Tab 6 at 107. Several months later, in January 2017,

the appellant resolved the criminal matter by pleading guilty to a single count of

reckless conduct. IAF, Tab 50 at 92-98. 

In July 2017, the agency proposed the appellant’s removal for criminal

conduct unbecoming. IAF, Tab 5 at 135-39. The deciding official sustained the

charge and removed the appellant, effective November 13, 2017. Id. at 28-30.

The appellant timely challenged his removal by filing the instant appeal.

IAF, Tab 1. In April 2018, the agency informed the administrative judge that it

had discovered an unspecified error and would soon cancel the removal action.

IAF, Tab 13 at 4-5. However, the agency indicated that it would not be returning

him to work, implying that it intended to correct the unspecified error and remove

the appellant again. IAF, Tab 13 at 4-5, Tab 14 at 4.

Over the following months, the parties worked to reach an agreement about

outstanding matters, but those efforts were unsuccessful. IAF, Tabs 18-19, 24.

The agency then filed a motion to dismiss this appeal as moot. IAF, Tab 25 at 4.

In support of its motion, the agency indicated that it had cancelled the appellant’s

removal, and it provided a sworn declaration regarding back pay. IAF, Tab 27

at 7. The appellant opposed the motion to dismiss, arguing that he had not yet

received all the back pay and benefits to which he was entitled. IAF, Tab 28 at 2.

2
The administrative judge informed the parties of the Board’s standards

regarding mootness and status quo ante, and indicated that the record was not

sufficiently developed on the matter. Id. at 2-4. Consequently, both parties filed

additional arguments and evidence. IAF, Tabs 29-30. After reviewing the

parties’ submissions, the administrative judge requested more information, IAF,

Tab 31, and both parties responded once more regarding mootness and status quo

ante relief, IAF, Tabs 32, 35.

Without any resolution to the dispute over the appellant’s return to status

quo ante, the agency reversed course and filed a motion to proceed to a hearing,

citing the extensive delays that it attributed to the appellant. IAF, Tab 36. The

administrative judge acquiesced. IAF, Tab 37.

After further developing the record and holding the requested hearing, the

administrative judge issued an initial decision that affirmed the cancelled removal

action. IAF, Tab 61, Initial Decision (ID). The appellant has filed a petition for

review. Petition for Review (PFR) File, Tab 1. The agency has filed a response.

PFR File, Tab 3.

On review, the appellant argues that the administrative judge erred by

adjudicating a cancelled removal rather than his return to status quo ante. PFR

File, Tab 1 at 6-7. In the alternative, the appellant presents a number of

arguments about the merits of the cancelled removal action. Id. at 7-13. The

agency filed a response. PFR File, Tab 3.

The Clerk of the Board issued an order, instructing the parties to provide

additional information regarding mootness and status quo ante relief from the

cancelled removal action. PFR File, Tab 4. The appellant responded, arguing

that the agency still owed him overtime pay, annual leave hours, compensatory

time, reimbursement for work boots, and a return to duty. PFR File, Tab 5. The

agency disagreed, arguing that the appellant received all the relief to which he

was entitled. PFR File, Tab 8. Notably, the agency indicated that it had

continued paying the appellant until March 2020, when the agency effectuated his

3
removal, again, for the same conduct that formed the basis of its cancelled

removal action. Id. at 9-10. That alleged removal is not before us in this appeal.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred by affirming a cancelled removal action.

Once again, the agency cancelled the November 2017 removal action, but

the parties could not agree about whether the agency had returned the appellant to

status quo ante. Rather than reaching a conclusion about the disputed matter,

status quo ante relief, the administrative judge adjudicated and affirmed the

cancelled removal action. By doing so, the administrative judge erred.

In Kitt v. Department of the Navy, 116 M.S.P.R. 680 (2011), the Board

concluded that an agreement to cancel or rescind an adverse action required that

the associated Standard Form 50 (SF-50) be removed from an employee’s Official

Personnel File (OPF). To reach this conclusion, the Board relied on a decision by

the U.S. Court of Federal Appeals for the Federal Circuit, which found that to

“rescind” a record of an adverse action meant to “destroy it, erasing” it from the

employee’s professional record. Id., ¶ 7 (quoting Conant v. Office of Personnel

Management, 255 F.3d 1371 (Fed. Cir. 2001)). The Board also relied on

language from the Office of Personnel Management’s (OPM) Guide for

Processing Personnel Actions,2 which instructs agencies to remove an SF-50 that

documents a cancelled personnel action from an employee’s OPF. Id., ¶ 10

(citing Office of Personnel Management, Guide to Processing Personnel Actions,

https://www.opm.gov/policy-data-oversight/data-analysis-documentation/

personnel-documentation/#url=Personnel-Actions (last visited Feb. 1, 2024)).

2

 While OPM guides and handbooks lack the force of law, the Board has held that they

are entitled to deference in proportion to their power to persuade. See Warren v.

Department of Transportation, 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (addressing an OPM

retirement handbook), aff’d, 493 F. App’x 105 (Fed. Cir. 2013); Luten v. Office of

Personnel Management, 110 M.S.P.R. 667, ¶ 9 n. 3 (2009) (granting “some deference”

to an OPM retirement Handbook). Here, we find that OPM’s Guide is persuasive for

explaining the consequences of an agency’s decision to rescind or cancel a personnel

action. 

4
The Board in Kitt observed that to “cancel” an action meant “to bring [it] to

nothingness,” to “omit” or “to remove” it. Id., ¶ 8 (citing Webster’s Ninth New

Collegiate Dictionary 200 (9th ed. 1985)). 

In the chapter of OPM’s guide covering cancellation and replacement

actions, OPM states that “[a] cancellation rescinds an earlier action that was

improper, that was proper but contains references to an improper action, or that

contains remarks that are inappropriate or erroneous and that should not have

been recorded.” Guide to Processing Personnel Actions, Ch. 32.2.b. It identifies

examples of situations where a cancellation is necessary, including where “[a]n

appointing officer determines an action should never have occurred . . . .” Id.

The guide further states that, “[w]hen a replacement action is required to erase the

effects of a cancelled action,” agencies should “record only the replacement

action, making no reference to the cancelled action.” Id. at Ch. 32.5.c. Finally, it

states that the cancellation SF-50 should not be included in the OPF, and agencies

should “remove from the OPF the personnel action (SF 50) being cancelled, the

related SF 52, and supporting documents . . . destroy[ing] the material removed

from the OPF.” Id. at Ch. 32.5.d.

In this case, while there remains a dispute about the return to status quo

ante, the agency has consistently acknowledged that it cancelled the appellant’s

removal. To do so, the agency returned him to a pay status, provided substantial

back pay, and purged his OPF of any reference to the November 2017 removal

action. E.g., IAF, Tab 30 at 16, Tab 32 at 7. Based on our interpretation of the

aforementioned authorities, the agency’s actions brought the November 2017

removal action to nothingness, rendering it legally inoperable. Accordingly, we

must vacate the administrative judge’s decision to affirm the cancelled

removal action. 

5
The administrative judge must further develop the record and determine whether

the appellant has been returned to status quo ante. 

Although an action may be within the Board’s jurisdiction, subsequent

events may render an appeal moot and foreclose the Board’s review. Rodriguez v.

Department of Homeland Security, 112 M.S.P.R. 446, ¶ 12 (2009). A case is

moot when the issues presented are no longer “live” or the parties lack a legally

cognizable interest in the outcome of the case. Hess v. U.S. Postal Service,

124 M.S.P.R. 40, ¶ 8 (2016). Mootness can arise at any stage of litigation, and an

appeal will be dismissed as moot if, by virtue of an intervening event, the Board

cannot grant any effectual relief in favor of the appellant. Rodriguez,

112 M.S.P.R. 446, ¶ 12. However, an agency’s unilateral modification of its

personnel action after an appeal has been filed cannot divest the Board of

jurisdiction, unless the appellant consents to such divestiture or the agency

completely rescinds the action being appealed. 3 Id. 

For a rescission to be complete, the appellant must be returned to the status

quo ante and not left in a worse position as a result of the cancellation than he

would have been in if the matter had been adjudicated and he had prevailed. Id.

Accordingly, if the agency cancelled the appellant’s removal and returned him to

status quo ante, as it alleged, this appeal is moot and the Board is divested of

3

 The Board has routinely held that if an appeal is not truly moot despite cancellation of

the action under appeal, the proper remedy is for the Board to retain jurisdiction and to

adjudicate the appeal on the merits. E.g., Price v. U.S. Postal Service,

118 M.S.P.R. 222, ¶ 8 (2012). To the extent that the parties or administrative judge

may have construed this precedent otherwise, we note that the Board retains

jurisdiction, but adjudicates only the live issues that remain. See, e.g., Sabio v.

Department of Veterans Affairs, 124 M.S.P.R. 161, ¶¶ 3, 9, 44 (2017) (adjudicating a

discrimination claim, but not the underlying removal, where an agency rescinded the

removal after the appellant filed her appeal); Hess v. U.S. Postal Service,

123 M.S.P.R. 183, ¶¶ 6, 9-10 (2016) (finding that although an agency’s removal action

was rendered moot by its post-appeal rescission, associated equal employment

opportunity claims by the appellant required adjudication); Blyther v. U.S. Postal

Service, 112 M.S.P.R. 537, ¶¶ 3, 14 (2009) (adjudicating discrimination and reprisal

claims that remained after the agency rescinded the reduction in grade that formed the

basis for the appellant’s appeal). 

6
jurisdiction. If, however, the agency cancelled the appellant’s removal without

returning him to status quo ante, as the appellant alleged, the appeal is not moot

because that issue remains live.

Restoration to the status quo ante generally requires that the employee be

placed back in his former position or in a position substantially equivalent in

scope and status to his former position. Harris v. Department of the Air Force,

96 M.S.P.R. 193, ¶ 6 (2004). Specifically, return to the status quo ante requires

return, with back pay, to a position of the same grade, pay, status, and tenure as

the one occupied before the agency’s action. Id. Additionally, restoration to the

status quo ante requires that the agency remove all references to the adverse

action from the appellant’s personnel file. Id. An appellant is not, however,

entitled to be placed in a better position than he would have enjoyed had the

appealable action not occurred. Sink v. Department of Energy, 110 M.S.P.R. 153,

¶ 19 (2008).

As previously mentioned, the parties disagreed about several issues

regarding the appellant’s return to status quo ante below, and the administrative

judge did not reach any conclusions about the disagreement. Compare IAF,

Tabs 27, 30, 32 (agency’s filings regarding the relief provided), with IAF,

Tabs 29, 35 (appellant’s arguments about further relief). The appellant argued

that although the agency provided some relief, it still owed him for approximately

$65,000 for additional overtime pay, IAF, Tab 29 at 9, 11 hours of compensatory

time, id. at 1, more than 100 hours of annual leave, id. at 20, and $107

reimbursement for work boots, IAF, Tab 35 at 3.

On review, the Clerk of the Board ordered the parties to submit additional

argument and evidence regarding the appellant’s return to status quo ante. PFR

File, Tab 4. Most notably, the order explained the following: an agency is

required to provide an appellant with a full accounting of his back pay award.

De Luca v. U.S. Postal Service, 76 M.S.P.R. 487, 489 (1997). Placing an

appellant on administrative leave following the cancellation of an adverse action

7
generally does not constitute a return to the status quo ante. Id. at 488. An

agency can decline to restore an employee to his prior position only if it has a

strong overriding interest requiring reassignment to another position. Shelton v.

U.S. Postal Service, 53 M.S.P.R. 483, 485 (1992). However, an agency’s

assertion that it is contemplating reinstating charges against an appellant is not

such an interest. De Luca, 76 M.S.P.R. at 488-89. 

In his response, the appellant once again presents evidence and argument

regarding overtime pay, compensatory leave, annual leave, and work boots. PFR

File, Tab 5 at 4-5. He also notes that the agency never returned him to duty.

Id. at 6. 

For its part, the agency presented arguments about only some of the matters

raised by the appellant, and no evidence. PFR File, Tab 8. The agency’s

response contains no mention of the overtime or leave balances the appellant has

characterized as required for his return to status quo ante. Concerning the

appellant’s allegations about reimbursement for work boots, the agency merely

describes the demand as unreasonable. 4 PFR File, Tab 8 at 7 n.3. The agency

provided no further information, such as any underlying policy regarding this

alleged entitlement. Concerning the appellant’s placement on administrative

leave, rather than his return to duty, agency counsel asserts that he has been

removed a second time, which could render that specific matter moot. Id. at 6

n.1, 9-10; see Williams v. Department of the Army, 97 M.S.P.R. 246, ¶ 8 (2004)

(recognizing that an agency’s placement of an appellant on administrative leave

after cancelling its first removal action became moot when the agency removed

him a second time because the Board could not provide any relief), overruled on

other grounds by Durr v. Department of Veterans Affairs, 99 M.S.P.R. 283

(2005). But, as previously warned, agency counsel’s statements in a pleading do

4

 The receipt the appellant submitted into the electronic record for his work boots is

difficult to read. PFR File, Tab 5 at 36. It appears to be dated January 2017, which is

after the September 2016 date on which the agency first removed him from duty but

before his November 2017 removal. E.g., IAF, Tab 6 at 104-07.

8
not constitute evidence. Hendricks v. Department of the Navy, 69 M.S.P.R. 163,

168 (1995); PFR File, Tab 4 at 3.

Under these circumstances, we are unable to determine whether the

appellant is entitled to additional relief because the record remains insufficiently

developed, despite repeated attempts to gather relevant evidence from the agency.

IAF, Tabs 28, 31; PFR File, Tab 4. We therefore remand this appeal to the

administrative judge for further adjudication of the appellant’s return to status

quo ante. Reed v. U.S. Postal Service, 98 M.S.P.R. 585, ¶ 12 (2005) (remanding

the appeal of an action that was cancelled as the appeal was pending for further

adjudication regarding the appellant’s return to status quo ante), overruled on

other grounds by Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 n.1

(2007). 

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

9