Case: 24-1481 Document: 26 Page: 1 Filed: 10/08/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ AMIR H. BIGDELI, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2024-1481 ______________________ Petition for review of the Merit Systems Protection Board in No. PH-0752-18-0300-I-1. ______________________ Decided: October 8, 2024 ______________________ AMIR H. BIGDELI, Cream Ridge, NJ, pro se.

ELIZABETH W. FLETCHER, Office of General Counsel, United States Merit Systems Protection Board, Washing- ton, DC, for respondent. Also represented by ALLISON JANE BOYLE, KATHERINE MICHELLE SMITH. ______________________ Before PROST, REYNA, and TARANTO, Circuit Judges.

PER CURIAM.

Case: 24-1481 Document: 26 Page: 2 Filed: 10/08/2024

2 BIGDELI v. MSPB

Amir H. Bigdeli has appealed the Merit Systems Pro- tection Board’s (“MSPB”) final order denying his petition for review and affirming an initial decision dismissing his administrative appeal of his indefinite suspension as moot.

Bigdeli v. Dep’t of the Navy, No. PH-0752-18-0300-I-1, 2023 WL 8868787 (M.S.P.B. Dec. 21, 2023) (“Board Decision”).

For the following reasons, we affirm.

BACKGROUND Mr. Bigdeli was a mechanical engineer with the De- partment of the Navy (“Navy”). The Navy, effective March 17, 2015, suspended him from access to classified information and from eligibility for assignment to a sensi- tive position. Id. at *1. The following day, the Navy placed Mr. Bigdeli on administrative leave for more than three years. Effective April 9, 2018, the Navy indefinitely sus- pended Mr. Bigdeli without pay, pending the adjudication of his security-clearance suspension. In a May 17, 2018 let- ter, however, the Navy informed Mr. Bigdeli that it had re- scinded the decision to impose the indefinite suspension and that it would return him to a paid administrative leave status, effective immediately. Mr. Bigdeli’s paid adminis- trative leave status was also restored, retroactive to April 9, 2018.

Mr. Bigdeli appealed his (later rescinded) indefinite suspension action to the MSPB. The Navy filed a motion to dismiss the appeal as moot because the Navy rescinded Mr. Bigdeli’s indefinite suspension. Id. The administrative judge (“AJ”) dismissed the appeal as moot. Mr. Bigdeli filed a petition for review before the MSPB alleging that he had not yet received any back pay, including the period for which he was initially suspended (April 9 to May 17, 2018), and that his indefinite suspen- sion was reinstated by the Navy. Id. The Navy opposed the petition for review and asserted that Mr. Bigdeli’s back pay was being processed. Both parties were ordered to Case: 24-1481 Document: 26 Page: 3 Filed: 10/08/2024

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provide evidence to address how much, if any, pay was re- ceived by Mr. Bigdeli for the appropriate time period.

S.A. 53–54. 1 Mr. Bigdeli was “advised that failure to re- spond to this Order may be deemed an admission by him that he has received all of the pay that he could have re- ceived if he had prevailed before the [MSPB] on his appeal of the [Navy]’s April 2, 2018 decision to indefinitely sus- pend him.” S.A. 54. The Navy filed multiple submissions in response, and the MSPB determined that the Navy pro- vided sufficient evidence to establish that Mr. Bigdeli had received back pay or other relief to which he would have been entitled. Board Decision, 2023 WL 8868787, at *2.

Mr. Bigdeli, however, did not respond to the order. The MSPB thus affirmed the AJ’s dismissal of the appeal as moot. Id. at *3.

Mr. Bigdeli timely appealed, and this court has juris- diction under 28 U.S.C. § 1295(a)(9).

DISCUSSION In review of MSPB final decisions, we are required to affirm the decision unless “any agency action, findings, or conclusions [are] found to be—(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.” 5 U.S.C. § 7703(c). “The petitioner bears the burden of establishing error in the [MSPB]’s de- cision.” Harris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998).

Mr. Bigdeli challenges the Navy’s alleged adverse ac- tion of an indefinite suspension without pay. 2 The Navy,

1 “S.A.” refers to the supplemental appendix in- cluded with the government’s informal brief.

2 Mr. Bigdeli also raises new and different argu- ments in his appeal to us that he did not present in his Case: 24-1481 Document: 26 Page: 4 Filed: 10/08/2024

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however, submitted argument and evidence indicating that it rescinded that suspension and that its payroll servicer paid Mr. Bigdeli the total net amount of back pay and in- terest on the gross back pay. Board Decision, 2023 WL 8868787 at *2. Mr. Bigdeli was advised that his failure to respond to the MSPB’s order may be deemed as an ad- mission by him that he has received all the pay that he could have received. S.A. 54. Nonetheless, Mr. Bigdeli did not respond to the order—let alone dispute the Navy’s ar- guments and evidence.

Given the Navy’s undisputed submissions—and in the absence of any arguments or evidence from Mr. Bigdeli— the petitioner has not met his burden of establishing error in the MSPB’s decision that found the administrative ap- peal moot. Indeed, substantial evidence supports the MSPB’s findings that Mr. Bigdeli has received all the back pay (and other relief) to which he would have been entitled in a successful appeal. Therefore, the MSPB did not err in its dismissal of the administrative appeal as moot.

CONCLUSION We have considered Mr. Bigdeli’s remaining argu- ments and find them unpersuasive. For the foregoing rea- sons, we affirm.

AFFIRMED COSTS No costs.

initial appeal to the MSPB. We therefore deem that these arguments have been forfeited and they are not properly before us.