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NOTE: This disposition is nonprecedential.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
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 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.
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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
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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 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
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] 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