Background
Michael Thorogood worked for the Department of the Navy as a logistics management specialist in a position requiring a Secret security clearance. After his eligibility to access classified information was revoked, the Navy proposed removing him for failure to satisfy a condition of employment and placed him on indefinite suspension.
The Navy later removed Thorogood after mistakenly treating an email challenging his clearance revocation as his response to the proposed removal. After Thorogood appealed, the Navy rescinded the removal, reinstated him retroactively to his prior indefinite-suspension status, allowed him to respond to the proposed removal, restored his benefits without a break in coverage, and removed references to the rescinded action from his personnel file. An administrative judge dismissed the appeal as moot, and the Merit Systems Protection Board affirmed.
The Court’s Holding
The Federal Circuit affirmed in a nonprecedential per curiam opinion. Substantial evidence supported the Board’s finding that the Navy completely rescinded the removal and restored Thorogood to the status quo ante. The court rejected his argument that mootness had to be established by the agency’s show-cause deadline, explaining that mootness may arise at any stage of litigation.
The court also held that the administrative judge did not improperly shift the burden of proving mootness. The Navy produced evidence that the rescission restored the status quo ante, while Thorogood retained the burden of establishing the Board’s jurisdiction. Finally, the Civil Service Reform Act—not the Administrative Procedure Act—governed his challenge to the personnel action, and the Board’s concise final order adequately identified and resolved the dispositive mootness issue.
Key Takeaways
- An appeal from an agency personnel action becomes moot when the agency completely rescinds the action and restores the employee to the position he would have occupied had he prevailed.
- Mootness need not be established by a particular procedural deadline; it may arise at any stage of the litigation.
- An MSPB order need not separately discuss every argument when it identifies the dispositive issue, considers the pleadings, and adequately states its conclusion.
Why It Matters
The decision illustrates the evidence needed to moot an MSPB appeal after an agency rescinds an adverse action: retroactive reinstatement, correction of personnel records, restoration of benefits without a coverage gap, and return to the employee’s pre-action status. It also confirms that federal employees cannot use the APA to bypass the CSRA framework governing challenges to removal actions.