Amir Bigdeli v. Department of the Navy

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

AMIR H. BIGDELI, DOCKET NUMBER

Appellant, PH-0752-18-0300-I-1 v.

DEPARTMENT OF THE NAVY, DATE: December 21, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Amir H. Bigdeli , Cream Ridge, New Jersey, pro se.

David S. Castro and Daniel C. Carleton , Joint Base McGuire-Dix-Lakehurst, New Jersey, for the agency.

Hillary A. H. Spadaccini , Esquire, Lakehurst, New Jersey, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member FINAL ORDER

The appellant has filed a petition for review of the initial decision, which dismissed the appeal of the agency’s indefinite suspension action as moot. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the administrative judge’s analysis of the mootness issue, we AFFIRM the initial decision.

BACKGROUND

The appellant held a Mechanical Engineer position with the agency. Initial Appeal File (IAF), Tab 1 at 1, 17, 21. Effective March 17, 2015, the agency suspended the appellant’s access to classified information and his eligibility for assignment to a sensitive position. Id. at 15. The next day, he was placed on administrative leave. Id. at 7. In a March 13, 2018 letter, the agency proposed converting the appellant’s non-duty, pay status to an indefinite suspension without pay. Id. at 17-18. In an April 2, 2018 letter, the agency decided to indefinitely suspend the appellant pending the adjudication of his security clearance case, effective April 9, 2018. Id. at 21-22.

The appellant appealed the indefinite suspension action to the Board, and he requested a hearing. Id. at 1-8. He did not raise any affirmative defenses. Id.; IAF, Tab 6, Initial Decision (ID) at 2 n.*. The agency filed a motion to dismiss the appeal as moot because it had rescinded the indefinite suspension action. IAF, Tab 4 at 4-6. The agency included a May 17, 2018 letter informing the appellant that the April 2, 2018 decision to impose the indefinite suspension was being rescinded and that, “As a result of this action, you will be returned to a paid administrative leave status effective immediately. Your administrative leave status shall also be retroactive back to 9 April 2018.” Id. at 15. The letter further stated that a new decision on the proposed indefinite suspension would be forthcoming. Id. Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal as moot. ID at 1-2.

The appellant filed a petition for review asserting that he has not received any pay and that the agency has reinstated his indefinite suspension. Petition for Review (PFR) File, Tab 1 at 1-7. 2 The agency filed a response opposing the petition for review and claiming that his back pay is being processed. 3 PFR File, Tab 4 at 4-9. The Office of the Clerk of the Board issued an Order that ordered both parties to provide evidence addressing whether the appellant has received any pay and, if so, whether he has received the appropriate amount of pay and whether he has been paid for the appropriate time period. PFR File, Tab 6 at 2. The agency has filed multiple submissions in response. PFR File, Tabs 7, 11-12. The appellant has not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW The agency has provided sufficient evidence on review to dismiss this appeal as moot.

The Board’s jurisdiction is determined by the nature of an agency’s action against a particular appellant at the time an appeal is filed with the Board, and an agency’s unilateral modification of its action after an appeal has been filed cannot divest the Board of jurisdiction unless the appellant consents to such divestiture or unless the agency completely rescinds the action being appealed. Vidal v. Department of Justice, 113 M.S.P.R. 254, ¶ 4 (2010). When an agency cancels or rescinds an action after the action has been appealed, the Board may dismiss the appeal as moot. Id. For an appeal to be rendered moot, an appellant must receive all of the relief that he could have received if the matter had been adjudicated and he had prevailed. Id. An agency’s expression of its intent to provide such relief is not sufficient to establish that the appeal is moot. Id. An appeal is not truly moot until all appropriate relief has been provided. Id.

Here, if the appellant had prevailed in this appeal, he could have been retroactively returned to a non-duty, pay status, effective April 9, 2018. IAF, Tab 4 at 13-15; see Sherrod v. Department of the Navy, 90 M.S.P.R. 347, ¶¶ 16-18 (2001) (finding that the appellant’s removal appeal was properly dismissed as moot when he was returned to the status quo ante in an approved leave status). The record before the administrative judge does not contain evidence showing that the agency actually provided the appellant with such relief. Thus, the appeal was not moot when the administrative judge issued the initial decision. See Haskins v. Department of the Navy, 106 M.S.P.R. 616, ¶ 22 (2007) (holding that an appeal may not be dismissed as moot until the agency provides acceptable evidence showing that it has actually afforded the appellant all of the relief that he could have received if the matter had been adjudicated and he had prevailed). We modify the initial decision to clarify that, although the appeal was not moot at the time the initial decision was issued, the agency has provided sufficient evidence on review to dismiss this appeal as moot. See Simnitt v. Department of Veterans Affairs, 113 M.S.P.R. 313, ¶ 5 (2010) (observing that the issue of the Board’s jurisdiction is always before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding).

Specifically, the agency has submitted a Standard Form 50 (SF-50) documenting the appellant’s new indefinite suspension, effective May 25, 2018, and an SF-50 documenting his retirement, effective the same date. PFR File, Tab 7 at 48-49. Thus, the back pay period is from April 9 through May 25, 2018. The agency has submitted argument and evidence indicating that, on March 22, 2019, the Defense Finance and Accounting Service (DFAS) paid the appellant $8,967.38 for “net-special pay.” PFR File, Tab 11 at 5, 7-10. The agency further claims that, on March 22, 2019, DFAS paid the appellant $918.25 for annual leave accrued during the back pay period and that, on April 19, 2019, DFAS issued a $795.57 interest payment to him. PFR File, Tab 12 at 4 & n.1. The agency’s assertions are consistent with its submission of a breakdown by DFAS of the appellant’s back pay for the pay periods that ended on April 14 through May 26, 2018. Id. at 6. The DFAS breakdown shows that the total net amount of back pay is $10,681.20, consisting of $9,885.63 of net back pay and $795.57 of interest on the gross back pay. 4 Id. The appellant has not disputed the agency’s arguments and evidence despite being advised in the Order that his failure to respond to the Order may be deemed an admission by him that he has received all of the pay that he could have received if he had prevailed before the Board on this appeal. PFR File, Tab 6 at 2. Based on the agency’s submissions on review, and in the absence of any argument from the appellant that the agency still has not provided all the relief to which he is entitled, we find that the appeal is moot. 5

Accordingly, we affirm the dismissal of this appeal as moot.

NOTICE OF APPEAL RIGHTS 6

The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the stating that the appellant would be placed on administrative leave with pay pending resolution of a security clearance issue. ID at 2. The rescission letter clearly informed the appellant that a new decision on the proposed indefinite suspension would be forthcoming. IAF, Tab 4 at 15. Accordingly, the appellant was not entitled to be placed on administrative leave pending the resolution of his security clearance case. court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and you wish to challenge the Board’s rulings on your whistleblower claims only, excluding all other issues , then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Jennifer Everling Acting Clerk of the Board

Washington, D.C.