Amir H. Bigdeli v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.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. F LETCHER , Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by ALLISON J ANE
BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before P ROST , REYNA, and T ARANTO, Circuit Judges.
P ER CURIAM .
Case: 24-1481 Document: 26 Page: 1 Filed: 10/08/2024

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BIGDELI v. MSPB 2
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 Bigdeli appealed his (later rescinded) indefinite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to dismiss the appeal as moot because the Navy rescinded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
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BIGDELI v. MSPB 3
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).
D ISCUSSION
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
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BIGDELI v. MSPB 4
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.
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