McCurry v. DOJ , 612 F. App'x 991 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANGELA D. MCCURRY,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2014-3214
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-13-0506-I-1.
______________________
Decided: May 15, 2015
______________________
ANGELA D. MCCURRY, Stockton, AL, pro se.
MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JOYCE R.
BRANDA, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before NEWMAN, O’MALLEY, and WALLACH, Circuit
Judges.
2 MCCURRY v. DOJ
PER CURIAM.
Angela D. McCurry (“McCurry”) appeals the decision
of the Merit System Protection Board (“Board”) denying
her request for corrective action against the Office of the
Solicitor General (“OSG”) for discrimination in violation of
the Uniformed Services Employment and Reemployments
Rights Act of 1994, Pub. L. No. 103-353, 108 Stat. 3149
(“USERRA”) (codified at 38 U.S.C. §§ 4301–33). Because
we find that the Administrative Judge (“AJ”) did not fail
to timely apprise McCurry of her burden of proof and did
not err by declining to exercise jurisdiction over her non-
USERRA claims, we affirm.
BACKGROUND
McCurry is a veteran of the United States Naval Re-
serve, receiving an honorable discharge from service on
July 13, 1996. She also has a Juris Doctor degree from
Thomas M. Cooley Law School, though she is not licensed
to practice law. McCurry applied for a position as a
paralegal specialist with OSG under four vacancy an-
nouncements, and was one of four applicants selected to
interview for the position. The agency chose not to select
any of the four interviewees for the position, and instead
re-advertised the position under a different announce-
ment number. McCurry did not re-apply for the position
once it was re-advertised.
McCurry filed a complaint challenging OSG’s decision
on August 15, 2011. In February 2013, the Office of
Special Counsel (“OSC”) informed McCurry that it in-
tended to take no action on her complaint and proceeded
to close the file. On April 24, 2013, McCurry filed the
appeal with the Board which is at issue here. McCurry
alleged that the OSG’s decision not to select her for the
paralegal specialist position constituted discrimination in
violation of USERRA because the agency improperly
considered her status as a veteran in its selection process.
McCurry also alleged that the agency committed prohibit-
MCCURRY v. DOJ 3
ed personnel actions by discriminating against her on the
basis of her race and age, by passing over an applicant
with veteran status without providing proper notice, and
by failing to inform her in the notice of non-selection that
no one was selected for the paralegal specialist position.
In response to her allegations, the AJ issued an initial
order finding that the appellant had made nonfrivolous
allegations of jurisdiction. The AJ conducted a telephonic
prehearing conference on February 20, 2014, during
which the AJ instructed McCurry of her burden of proof
under USERRA and Sheehan v. Department of Navy, 240
F.3d 1009 (Fed. Cir. 2001), and explained to McCurry that
the Board did not have jurisdiction over her claims of
discrimination that were unrelated to her veteran status.
Finally, the AJ asked the parties to outline the evidence
and witnesses they intended to offer at the hearing the AJ
scheduled to address McCurry’s USERRA claims. These
notices were confirmed in a February 21, 2014 order
summarizing the February 20 conference. The AJ then
held a video-teleconference hearing on February 25. At
the hearing, the parties were permitted to introduce
evidence, testify, and question witnesses.
The AJ issued an initial decision on March 4, 2014,
denying McCurry’s request for corrective action under
USERRA. McCurry v. Dep’t of Justice, No. AT-4324-13-
0506-I-1, 2014 M.S.P.B. LEXIS 1302 (March 4, 2014)
(“Initial Decision”). The AJ detailed the testimony of
Candy Lubin, Supervisor of the Research and Publica-
tions Unit at OSC and a member of the panel who inter-
viewed the applicants, and William Dziwura, Acting
Executive Director at OSC during the time of the applica-
tion process. Id. at *5–15. Lubin and Dziwura testified
that McCurry’s veteran status played no role in the
selection process, and that the agency decided to cancel
and relist the paralegal specialist vacancy announcement
because the Principal Deputy Solicitor General decided to
seek more qualified applicants from a larger applicant
4 MCCURRY v. DOJ
pool. Id. at *6–8. The AJ found the testimony of Lubin
and Dziwura to be “exceedingly credible,” id. at *14, and,
in light of McCurry’s “evasiveness” and “nonresponsive
answers,” the AJ “seriously question[ed] [McCurry’s]
credibility.” Id. at *11. The AJ concluded that neither a
“test” given to McCurry during her interview, a sentence
in an email from Dziwura to supervisors referring to
McCurry as the “Vet,” nor the content of her non-selection
notice sufficiently evidenced “that the agency harbored
hostility or animosity towards veterans in general or the
appellant’s status as a veteran in particular.” Id. at *15.
McCurry filed a timely petition for review of the Ini-
tial Decision with the Board. McCurry v. Dep’t of Justice,
121 M.S.P.R. 383, at *5 (July 23, 2014) (“Final Decision”).
McCurry argued that the AJ prejudiced her by failing to:
(1) provide information regarding her burden of proof
under USERRA until the February 20, 2014 telephone
conference, (2) find discriminatory animus in the Dziwura
email, and (3) correctly accept her proffered evidence. Id.
at *6. The Board first concluded that the AJ properly
informed the parties of their burdens under USERRA at
the telephone conference, and provided the parties with
the opportunity to submit evidence and argument prior to
the close of the record. Id. at *7–8. The Board then
agreed with the AJ that the Dziwura email, when read in
context, identified McCurry’s veteran status merely to
show that the appropriate consideration would be given to
her entitlement to a veterans preference. Id. at *9. The
Board further determined that McCurry failed to submit
any other evidence demonstrating that she met her initial
burden of proof under USERRA and Sheehan. Id. at *9–
11. Finally, the Board concluded that the AJ did not
abuse his discretion in failing to allow evidence that,
according to McCurry, was not mentioned in a February
21 summary of the February 20 prehearing conference.
Id. at *11–12. The Board thus denied the petition for
review and affirmed the Initial Decision.
MCCURRY v. DOJ 5
McCurry filed a timely notice of appeal with this
Court on September 22, 2014, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9) (2012).
ANALYSIS
Our review of the Board’s decisions is limited by stat-
ute. 5 U.S.C. § 7703(c). We only set aside the Board’s
actions, findings, or conclusions that are:
(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 . . . .
Id. Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1369 (Fed. Cir. 2004) (citation and internal
quotation marks omitted).
On appeal, McCurry alleges that the AJ erred by fail-
ing to provide her with a sufficient opportunity to submit
evidence and argument in support of her USERRA claim.
Although McCurry concedes that the AJ informed the
parties of their respective burdens during the February 20
telephone conference and reiterated those burdens in the
February 21 order, she argues that the AJ failed to “prof-
fer[] [any] evidence or facts from the record to support and
demonstrate how the administrative judge provided the
petitioner with an opportunity to submit evidence and
argument . . . .” Appellant Br. at 12. In particular,
McCurry argues that, as of February 21, the applicable
discovery deadlines for submission of evidence and argu-
ment had passed, making the February 21 order “of no
effect.” Id. at 13. McCurry also alleges that the four days
between the date of the February 21 order and the Febru-
ary 25 hearing did not comply with the requirements of 5
6 MCCURRY v. DOJ
C.F.R. § 1201.51 (2014). McCurry further claims that the
Board erred by concluding that it lacked jurisdiction over
her prohibited personnel practices (i.e., non-USERRA)
claims, arguing that 5 U.S.C. §§ 1214(a)(3), 1221(a) justify
the Board’s jurisdiction. And, finally, McCurry contends
that the Board erred by not addressing all allegations
made in her petition for review.
The government, in response, first notes that McCur-
ry does not challenge the Board’s substantive determina-
tions, merely raising procedural arguments. Regarding
McCurry’s claim that the AJ failed to provide sufficient
opportunity to submit evidence, the government argues
that none of the evidence McCurry submitted as of the
February 25 hearing was rejected as untimely—the AJ
only rejected (as untimely) evidence McCurry attempted
to enter after the record had been closed. The govern-
ment also claims that McCurry has failed to demonstrate
that she was prejudiced by the timing of the February 20
instructions. The government next argues that the Board
complied with 5 C.F.R. § 1201.51, which sets the mini-
mum number of days between the date of the petitioner’s
receipt of a hearing notice and the eventual hearing, not
the number of days between receipt of USERRA instruc-
tions and the hearing. The government also asserts that
the AJ performed a thorough evaluation of the evidence
and the Board considered all relevant objections. Finally,
the government claims that neither 5 U.S.C. § 1214(a)(3)
nor 5 U.S.C. § 1221(a) would justify the Board’s jurisdic-
tion over McCurry’s non-USERRA claims.
We agree with Board’s disposition of McCurry’s
claims. USERRA creates a burden-shifting framework for
demonstrating that an employer discriminates on the
basis of military service. Sheehan, 240 F.3d at 1012.
Under this framework:
The procedures established by precedent require
an employee making a USERRA claim of discrim-
MCCURRY v. DOJ 7
ination to bear the initial burden of showing by a
preponderance of the evidence that the employee's
military service was “a substantial or motivating
factor” in the adverse employment action. . . . If
this requirement is met, the employer then has
the opportunity to come forward with evidence to
show, by a preponderance of the evidence, that the
employer would have taken the adverse action
anyway, for a valid reason.
Id. at 1013 (internal citations omitted). Within this
framework, the Board has determined that:
an administrative judge must inform an appellant
who files a USERRA petition for remedial action,
or raises a violation of USERRA as an affirmative
defense, of the USERRA burden and methods of
proof identified in Sheehan, and must provide the
parties with an opportunity to submit evidence
and argument to meet the USERRA burden and
methods of proof.
Matz v. Dep’t of Veterans Affairs, 91 M.S.P.R. 265, ¶ 9
(2002).
McCurry does not dispute that the AJ provided the
parties with instructions regarding the “burden and
methods of proof identified in Sheehan.” Id. McCurry
instead argues that the AJ failed to “provide the parties
with the opportunity to submit” the necessary evidence to
meet these burdens. Id. We agree with McCurry that the
timing of the AJ’s notice is troublesome, at least for pro se
petitioners such as McCurry. The AJ informed the par-
ties of their burdens under USERRA and Sheehan during
the February 20 prehearing conference. The AJ also
included the same instructions in the February 21 order
detailing the topics discussed during the prehearing
conference. Thus, notice was provided only four days
before the February 25 hearing and after discovery dead-
lines had passed. On the same day that the AJ informed
8 MCCURRY v. DOJ
McCurry of her burdens under USERRA and Sheehan,
the AJ also appeared to require McCurry to identify all
witnesses and exhibits she would present during the
hearing. This rendered the substantive value of the AJ’s
notification almost meaningless.
Regardless of the problematic nature of the timing of
the AJ’s notice, we nevertheless conclude that the Board
properly upheld the AJ’s denial of McCurry’s request for
corrective action. The AJ eventually allowed the parties
to submit evidence and objections until the February 25
hearing, notwithstanding any deadlines in prior discovery
orders. This curative approach somewhat mitigates any
prejudice that transpired due to USERRA and Sheehan
notice occurring after the close of discovery. Although the
AJ rejected some evidence proffered by McCurry during
the prehearing conference, the AJ rejected that evidence
because it was duplicative with exhibits already in the
record. The only other indication in the record that the
AJ rejected evidence introduced by McCurry involved
evidence received on March 3, 2014, after the AJ closed
the record following the February 25 hearing. See 5
C.F.R. § 1201.58 (2014) (“When there is a hearing, the
record ordinarily will close at the conclusion of the hear-
ing. When the judge allows the parties to submit argu-
ment, briefs, or documents previously identified for
introduction into evidence, however, the record will re-
main open for as much time as the judge grants for that
purpose.”). And the AJ determined that this evidence
introduced post-hearing was not new and material evi-
dence unavailable prior to the close of the record. The AJ
thus acted within his discretion by refusing to consider
the March 3 evidence.
Despite the opportunity to explain both to the Board
and this court what evidence she would have proffered or
what discovery she would have conducted if provided with
notice of her burdens at a more appropriate time, McCur-
ry points to nothing demonstrating that the AJ’s lack of
MCCURRY v. DOJ 9
timely notice prejudiced her. This failure to demonstrate
any prejudice is especially relevant in light of the AJ’s
decision to keep the record open through the hearing and
to consider her post-hearing evidentiary submissions.
McCurry thus fails to demonstrate that either the timing
of the February 20 instructions or the exclusion of any of
the proposed evidence prejudiced her sufficiently to war-
rant remand. See Abrams v. Dep’t of Veterans Affairs, 306
F. App’x 602, 604–05 (Fed. Cir. 2009). We therefore hold
that the AJ allowed McCurry to submit evidence and
objections sufficient to meet her burden under USERRA
and Sheehan, and that McCurry failed to demonstrate
any prejudice due to the timing of the USERRA and
Sheehan notice.
We also conclude that McCurry’s reliance on 5 C.F.R.
§ 1201.51 is inapposite. Section 1201.51(a) states that
“[t]he hearing will be scheduled not earlier than 15 days
after the date of the hearing notice unless the parties
agree to an earlier date.” McCurry does not argue that
the Board erred by setting the hearing for less than 15
days after the date she received a hearing notice; she
instead argues that the Board erred by having the hear-
ing within 4 days of when she received notice of her
burden under USERRA and Sheehan. These are two
different notices, and 5 C.F.R. § 1201.51(a) does not
address the timing of notice of a party’s burden under
USERRA and Sheehan with regard to the date of the
hearing.
We further hold that the Board appropriately found
that it did not have jurisdiction over McCurry’s non-
USERRA racial and age discrimination claims. McCurry
points to 5 U.S.C. §§ 1214(a)(3), 1221(a) in support of the
Board’s jurisdiction over her claims. Section 1221(a)
permits an employee to seek corrective action from the
Board “as a result of a prohibited personnel practice
described in § 2302(b)(8) or § 2302(b)(9)(A)(i).” Section
1214(a)(3) further describes when an employee can seek
10 MCCURRY v. DOJ
corrective action from the Board under 5 U.S.C. § 1221(a).
Similar to § 1221, an employee may only seek corrective
action pursuant to § 1214(a)(3) “for a prohibited person-
nel practice described in § 2302(b)(8) or § 2302(b)(9)(A)(i) .
. . .” Sections 2302(b)(8) and (b)(9), however, involve
personnel actions taken in response to whistleblowing
activities, and McCurry does not present any whistleblow-
ing allegations. Sections 1214(a)(3) or 1221(a), therefore,
cannot justify the Board’s jurisdiction over her non-
USERRA claims. And, as we have previously noted, “the
Board does not have jurisdiction under USERRA to adju-
dicate claims unrelated to discrimination against a peti-
tioner based on military status,” and the petitioner must
identify a separate statutory source for the Board’s juris-
diction over the non-USERRA discrimination claims.
Swidecki v. Dep’t of Commerce, 431 F. App’x 900, 903
(Fed. Cir. 2011); Metzenbaum v. Dep’t of Justice, 89
M.S.P.R. 285, ¶ 15 (2001); cf. Kloeckner v. Solis, 568 U.S.
___, 133 S. Ct. 596, 603-04 (2012) (holding that a federal
employee who claims that an agency violated one of the
antidiscrimination statutes listed in 5 U.S.C. § 7702(a)(1)
should seek judicial review in district court, not the
Federal Circuit, even though the action was appealable to
the Board); Conforto v. Merit Sys. Prot. Bd., 713 F.3d
1111, 1119–20 (Fed. Cir. 2013) (holding that, even in light
of Kloeckner, the Federal Circuit retains jurisdiction over
appeals from Board decisions dismissing a discriminatory
conduct claim for lack of jurisdiction).
Finally, we hold that the Board did not err by failing
to consider McCurry’s arguments made in her petition for
review. McCurry claims that the Board “simply ignored”
her explanations as to why the AJ’s factual determina-
tions were incorrect on certain points. The Board, howev-
er, carefully reviewed the AJ’s analysis of the evidence
presented. Final Decision, at *9–12. And as the Board
correctly noted, many of the AJ’s conclusions derived from
credibility determinations and observations of the de-
MCCURRY v. DOJ 11
meanor of witnesses. The Board must give such determi-
nations significant deference. Haebe v. Dep’t of Justice,
288 F.3d 1288, 1300–01 (Fed. Cir. 2002). The Board
therefore carefully reviewed the evidence considered by
the AJ, including the AJ’s justifications for excluding
some proffered evidence, and affirmed the AJ’s determi-
nation. On this basis, the Board did not err in its review
of McCurry’s petition for review.
CONCLUSION
Because the AJ informed McCurry of her burden of
proof under USERRA and allowed her to present evidence
sufficient to meet that burden, and because the Board
fully considered McCurry’s arguments made in her peti-
tion for review, we affirm the Board’s decision denying
McCurry’s request for corrective action pursuant to
USERRA. And because the Board correctly determined
that its jurisdiction under USERRA did not extend to
McCurry’s claims for discrimination on bases other than
military status, we affirm the Board’s dismissal of
McCurry’s non-USERRA claims for want of jurisdiction.
AFFIRMED
COSTS
No costs.