Thorogood v. MSPB

Case: 26-1588 Document: 34 Page: 1 Filed: 10/08/2026 NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ MICHAEL THOROGOOD, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent ______________________ 2026-1588 ______________________ Petition for review of the Merit Systems Protection Board in No. DC-0752-24-0353-I-1. ______________________ Decided: October 8, 2026 ______________________ MICHAEL THOROGOOD, Norfolk, VA, pro se. ELIZABETH W. FLETCHER, Office of the General Coun- sel, United States Merit Systems Protection Board, Wash- ington, DC, for respondent. Also represented by KATHERINE MICHELLE SMITH. ______________________ Before LOURIE, REYNA, and WALLACH, Circuit Judges. PER CURIAM. Case: 26-1588 Document: 34 Page: 2 Filed: 10/08/2026 2 THOROGOOD v. MSPB Mr. Thorogood seeks review of a Merit Systems Protection Board (“the Board”) final decision denying his petition for review and affirming an initial decision dismissing his administrative appeal as moot. Because we agree with the Board’s determination that the administrative appeal is moot, we affirm. BACKGROUND Mr. Thorogood was employed by the Department of the Navy (“the Agency”) as a Logistics Management Specialist, GS-0346-09, at Norfolk Naval Shipyard. Mr. Thorogood’s position required him to obtain and maintain a Secret security clearance. Appx107–11. 1 On July 17, 2023, the Agency notified Mr. Thorogood that his “eligibility to access classified information” had been revoked “based on [certain] security concerns.” Appx68. The Personnel Security Appeals Board (“the PSAB”) issued a final decision upholding Mr. Thorogood’s security clearance revocation on January 12, 2024. Appx77. On January 25, 2024, the Agency issued Mr. Thorogood a Notice of Proposed Removal for failure to meet a condition of employment. Appx70. On January 28, 2024, the Agency indefinitely suspended Mr. Thorogood “due to the loss of eligibility for access to classified information and assignment to sensitive duties.” 2 SAppx44 fn.1; Thorogood Br. at 5 (“On October 26, 2023, 1 “Appx” refers to the appendix filed by Mr. Thorogood, whereas “SAppx” refers to the appendix attached to the MSPB’s brief. 2 Mr. Thorogood appealed the indefinite suspension to the Board in case number DC-0752-24-0319-I-1. On June 3, 2026, this Court affirmed the Board’s final decision, which upheld Mr. Thorogood’s indefinite suspension. See Thorogood v. Dep’t of the Navy, No. 2026- 1219, 2026 WL 1580155, at *1 (Fed. Cir. June 3, 2026). Case: 26-1588 Document: 34 Page: 3 Filed: 10/08/2026 THOROGOOD v. MSPB 3 the agency issued a decision letter placing Petitioner into a non-pay status effective January 28, 2024.”). On January 29, 2024, Mr. Thorogood sent the Agency an email disagreeing with the PSAB’s decision. See Appx79. However, the Agency “mistakenly believed” Mr. Thorogood’s email was a reply to the Notice of Proposed Removal, Appx86, and issued a final decision removing him from his position, effective February 16, 2024, Appx74. On February 17, 2024, Mr. Thorogood emailed the Agency stating that he did not receive the Notice of Proposed Removal until February 16, 2024, and that he intended to reply to it. Appx91. On February 26, 2024, Mr. Thorogood filed an administrative appeal with the Board challenging the February 16, 2024 removal. Appx81–84. On February 27, 2024, the Agency notified Mr. Thorogood that “the Agency is in the process of rescinding the Decision Letter dated February 9, 2024, and the SF-50 that was issued February 16th.” Appx86. Mr. Thorogood was also notified that he would “be given the chance to reply to the Notice of Proposed Removal.” Appx86. That same day, the Agency cancelled the February 16, 2024 removal and reinstated Mr. Thorogood to his position, retroactive to February 16, 2024. See SAppx49. On July 9, 2024, after two status conferences and an Order to Show Cause, the Administrative Judge (“the AJ”) issued an initial decision dismissing Mr. Thorogood’s appeal as moot. The AJ found that the Agency had returned Mr. Thorogood to the status quo ante, i.e., he was reinstated into his indefinite suspension status and given an opportunity to respond to the Notice of Proposed Removal. SAppx13. The AJ also found that Mr. Thorogood’s benefits were restored without a break in coverage and his Official Personnel File was “purged” of any reference to the February 16, 2024 removal decision. Case: 26-1588 Document: 34 Page: 4 Filed: 10/08/2026 4 THOROGOOD v. MSPB SAppx13. On March 26, 2026, the Board denied Mr. Thorogood’s petition for review and affirmed the AJ’s initial decision, which became the Board’s final decision under 5 C.F.R. § 1201.113(b). SAppx1–2. Mr. Thorogood timely appealed to this Court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION “Our scope of review in an appeal from a decision of the Board is limited.” Cheney v. Dep’t of Just., 479 F.3d 1343, 1348 (Fed. Cir. 2007). “We will uphold a decision of the [Board] unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law or unsupported by substantial evidence.” Jenkins v. Merit Sys. Prot. Bd., 911 F.3d 1370, 1373 (Fed. Cir. 2019) (internal quotation marks and citation omitted). “We review the Board’s jurisdictional determinations de novo and its underlying factual findings for substantial evidence.” Jones v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir. 2024). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). “The petitioner bears the burden of establishing error in the Board’s decision.” Harris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998). “If an appealable action is canceled or rescinded by an agency, any appeal from that action becomes moot, thereby depriving the [Board] of jurisdiction.” Jenkins, 911 F.3d at 1373 (internal quotation marks omitted). “For an appeal to be deemed moot, the agency’s rescission must be complete, i.e., 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.” Price v. U.S. Postal Serv., 118 M.S.P.R. 222, 226 (2012). Case: 26-1588 Document: 34 Page: 5 Filed: 10/08/2026 THOROGOOD v. MSPB 5 Mr. Thorogood raises three principal challenges on appeal, which we address in turn. First, Mr. Thorogood contends the Board erred in dismissing his appeal as moot because the Agency’s rescission of the February 16, 2024 removal was not “voluntary, complete, [and] unconditional.” 3 See Thorogood Br. at 39–42. Mr. Thorogood argues the Agency’s rescission was not complete because “[m]ootness must be established at the time the rescission is issued and by the Show Cause deadline,” and the Agency’s rescission failed to meet this because his “FEHB, dental, and vision coverage remained terminated, his children were denied medical care, and his payroll and personnel records had not been corrected” by the “Show Cause deadline.” See id. at 41. We disagree. 3 Although Mr. Thorogood argues that a rescission must be “voluntary” and “unconditional,” he provides no legal support for this assertion. See Thorogood Br. at 39, 42. The MSPB raises this same issue and asserts that this additional “language is possibly a generative AI hallucination.” MSPB Br. at 10. The MSPB also notes that “Mr. Thorogood’s brief contains many hallmarks of generative AI use, including inconsistent page margins, heavy use of bolded font, frequent em dashes, and multiple bulleted lists,” and “[i]t also contains a nonexistent case caption, ‘Camble v. Department of Defense,’ with a reporter citation that points to a different case.” Id. at 10 fn.4. Of note, Mr. Thorogood does not deny the use of AI; instead, he asserts that the MSPB’s AI allegation is speculative. See Thorogood Reply Br. at 20–21. The Court interprets Mr. Thorogood’s assertion as an admission of AI usage. Regardless of how Mr. Thorogood’s brief was drafted, the Court cautions against unsupported legal arguments. Case: 26-1588 Document: 34 Page: 6 Filed: 10/08/2026 6 THOROGOOD v. MSPB “[M]ootness can arise at any stage of litigation.” Calderon v. Moore, 518 U.S. 149, 150 (1996). Thus, Mr. Thorogood’s argument that mootness must be established at a particular point in time fails as a matter of law. Furthermore, substantial evidence supports the Board’s finding that the Agency’s rescission was complete, i.e., Mr. Thorogood had been returned to the status quo ante. The Agency provided evidence that on February 27, 2024, the February 16, 2024 removal had been cancelled. See SAppx49. The Agency also provided evidence showing that all documents related to the February 16, 2024 removal had been eliminated from Mr. Thorogood’s Official Personnel File and that his health benefits had been restored without a break in coverage. See SAppx33–34. Moreover, Mr. Thorogood conceded before the AJ that his health benefits had been restored. See Appx64 (“During the conference, the appellant indicated that his eligibility for, or enrollment in, FEHB benefits had been reinstated.”). Accordingly, we conclude that substantial evidence in the record supports the Board’s finding regarding status quo ante relief; and therefore, the Board did not err in dismissing Mr. Thorogood’s administrative appeal as moot. See Price, 118 M.S.P.R. at 226. Second, Mr. Thorogood maintains that the Board erred by improperly shifting the burden of proof on mootness to himself. See Thorogood Br. at 42–43, 48–50. Mr. Thorogood argues the AJ committed “clear legal error” by requiring “Petitioner to prove the rescission was incomplete” because “after Petitioner submitted unrebutted evidence that the rescission was incomplete after the agency’s Show Cause Deadline” the AJ “provided the agency additional time and guidance to supplement the record.” Id. at 42. Again, we disagree. “The party arguing that a case has become moot bears the burden of coming forward with the subsequent events that have produced that alleged result.” Mitchco Int’l, Inc. v. United States, 26 F.4th 1373, 1378 (Fed. Cir. 2022) Case: 26-1588 Document: 34 Page: 7 Filed: 10/08/2026 THOROGOOD v. MSPB 7 (internal quotation marks and citation omitted). Here, the burden remained with the Agency to prove the rescission of the February 16, 2024 removal had rendered Mr. Thorogood’s appeal moot. The Agency initially brought forth evidence and argument that it had returned Mr. Thorogood to the status quo ante. See SAppx40–49. Mr. Thorogood then “filed a series of responses” arguing that the Agency’s rescission was not complete. SAppx11; see generally Appx121–175. Following Mr. Thorogood’s responses, the AJ held a status conference to discuss “concern[s] that the appellant had not been returned to the status quo ante.” Appx64. The Agency was then given an additional opportunity to submit evidence that Mr. Thorogood had been returned to the status quo ante. SAppx11–12. Throughout the entire administrative proceeding, the AJ properly held the Agency to its burden. Thus, we find no merit in Mr. Thorogood’s argument. Mr. Thorogood also asserts “[t]he Show Cause Order itself demonstrates that the AJ improperly shifted the burden to Petitioner by directing him to prove that the rescission was complete by a deadline.” Thorogood Br. at 43 (emphasis omitted). Again, we disagree. The AJ ordered Mr. Thorogood “to show cause as to why the present appeal from the agency’s February 16, 2024 decision to remove him is not moot.” Appx59 (emphasis added). Because Mr. Thorogood has the burden of establishing the Board’s jurisdiction, requiring him to respond with evidence that his appeal is not moot does not run afoul of that principle. See 5 C.F.R. § 1201.56(b)(2)(i)(A) (providing that appellant bears the burden of proof by preponderant evidence regarding jurisdiction issues). Third, Mr. Thorogood contends that the Board’s final order violated the Administrative Procedure Act (“APA”) because it “consisted of a single paragraph that contained no analysis, addressed none of Petitioner’s arguments, and Case: 26-1588 Document: 34 Page: 8 Filed: 10/08/2026 8 THOROGOOD v. MSPB did not evaluate the AJ’s errors or the agency’s statutory violations.” Thorogood Br. at 57. We disagree. As a preliminary matter, Mr. Thorogood’s MSPB adjudication is governed by the Civil Service Reform Act (“CSRA”), not the APA. Mr. Thorogood is challenging the Agency’s decision to remove him, and “[a] challenge to removal is precisely the type of personnel action regularly adjudicated by the MSPB and the Federal Circuit within the CSRA scheme.” See Elgin v. Dep’t of Treasury, 567 U.S. 1, 22 (2012). Mr. Thorogood cannot “circumvent the [Civil Service Reform] Act’s requirements and limitations by resorting to the catchall APA to challenge agency employment actions.” See Ricci v. Merit Sys. Prot. Bd., 953 F.3d 753, 760 (Fed. Cir. 2020) (internal quotation marks and citation omitted). Regardless, “[t]he author of an opinion has broad discretion to determine what the opinion should contain and in what detail.” Lowder v. Dep’t of Homeland Sec., 504 F.3d 1378, 1383 (Fed. Cir. 2007). Furthermore, “[i]t is well-established that a litigant’s right to have all issues fully considered and ruled on by the appellate court does not equate to a right to a full written opinion on every issue raised.” Bernklau v. Principi, 291 F.3d 795, 801 (Fed. Cir. 2002) (internal quotation marks and citation omitted). While succinct, the Board’s final order identified the “dispositive issue” in the appeal as “whether the appeal is moot,” summarized Mr. Thorogood’s arguments, noted that it had “fully consider[ed]” the pleadings, and then concluded that Mr. Thorogood had failed to establish any basis for granting the petition for review. See SAppx1–2. Accordingly, we see no error in the Board’s final order. Mr. Thorogood raises several other arguments that are either irrelevant to his appeal, unsupported by fact or law, or both. See, e.g., Thorogood Br. at 59 (asserting that the Agency erred by suspending him instead of reassigning Case: 26-1588 Document: 34 Page: 9 Filed: 10/08/2026 THOROGOOD v. MSPB 9 him). Because we find no merit in these additional arguments, we decline to address them. CONCLUSION For the foregoing reasonings, we affirm. AFFIRMED COSTS No costs.