Searcy v. Merit Systems Protection Board , 486 F. App'x 117 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
ANDREW SEARCY, JR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2012-3033
__________________________
Petitions for review of the Merit Systems Protection
Board in case nos. AT0752110243-I-1.
__________________________
ANDREW SEARCY, JR.,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2012-3054
__________________________
Petitions for review of the Merit Systems Protection
Board in case nos. AT432410 0356-B-1.
SEARCY v. MSPB 2
___________________________
Decided: June 14, 2012
___________________________
ANDREW SEARCY, JR., of Peachtree City, Georgia, pro
se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before DYK, PROST, and O’MALLEY, Circuit Judges.
PER CURIAM.
Andrew Searcy, Jr. appeals two separate final deci-
sions of the Merit Systems Protection Board (“Board”).
Although these appeals were not consolidated before us,
we address Searcy’s appeals in a single decision in light of
their shared background and procedural history. In
Searcy v. Department of Agriculture, No. AT-4324-10-
0356-B-1 (M.S.P.B Dec. 16, 2011) (“Searcy v. USDA”), the
Board dismissed Searcy’s claims against the United
States Department of Agriculture (“USDA”) under the
Uniformed Services Employment and Reemployment
Rights Act of 1994 (“USERRA”), the Veterans’ Reemploy-
ment Rights Act of 1940 (“VRRA”), and the Veterans
Employment Opportunity Act of 1998 (“VEOA”). We
affirm the Board’s dismissal of Searcy’s USERRA and
VRRA claims as supported by substantial evidence, and
affirm the Board’s dismissal of Searcy’s VEOA claim for
lack of jurisdiction. In Searcy v. Department of Agricul-
ture, No. AT-0752-11-0243-I-1 (M.S.P.B. Nov. 10, 2011)
3 SEARCY v. MSPB
(“Searcy v. MSPB”), the Board dismissed Searcy’s claim of
constructive removal as untimely. We affirm that deci-
sion as supported by substantial evidence.
I.
Searcy served on active military duty from August 1,
1964 to July 31, 1967. In 1967, Searcy joined the civil
service and began working for the Federal Water Pollu-
tion Control Administration. In 1974, Searcy transferred
to the USDA Forest Service Southeastern Forest Experi-
ment Station in Asheville, North Carolina. In 1975,
Searcy enrolled full-time in a post-graduate program at
Northwestern University under the provisions of the
Government Employees Training Act. In connection with
enrollment in that program, Searcy signed Form AD-821
through which he agreed to remain in the employ of the
Forest Service in exchange for tuition benefits. In 1976,
Searcy signed a second agreement to extend his enroll-
ment in the post-graduate program through 1979 and
later signed a third agreement to extend his enrollment
through December 31, 1981. As memorialized in Form
AD-821, the USDA agreed to pay Searcy’s tuition and
salary in exchange for Searcy’s employment with the
USDA for a period of time equal to three times the train-
ing period length or repayment of the training costs.
According to the USDA, Searcy left Northwestern
University on March 28, 1977 without completing his
training program, and did not return to his position with
the Forest Service. The USDA terminated Searcy for
separation by abandonment effective May 30, 1977.
Searcy was listed as indebted to the agency in the USDA’s
final salary payment report and, on January 30, 1979, the
USDA placed a lien on Searcy’s Civil Service Retirement
System account through Standard Form 2805 to satisfy
his debt of $11,036.99.
SEARCY v. MSPB 4
On August 27, 1997, Searcy sought Equal Employ-
ment Opportunity (“EEO”) counseling, alleging he had
been discriminated against on the basis of race and was
coerced into resigning from the USDA in 1978. Searcy
filed a complaint subsequent to this counseling and, in
response to the Equal Employment Opportunity Commis-
sion’s (“EEOC”) requests for information, stated that he
had not sought EEO counseling at the time of the incident
because the USDA had not provided EEO counselors. The
EEOC dismissed Searcy’s complaint on April 16, 1999, for
failure to timely contact an EEO counselor within the
forty-five day limit provided by EEOC regulations, finding
that Searcy had not used due diligence in pursuit of his
claim over the nineteen year delay.
On June 12, 2006, Searcy received notice from the Of-
fice of Personnel Management (“OPM”) that his applica-
tion for deferred retirement was denied because his
retirement contributions had been forfeited to pay his
debt. Searcy sought EEOC counseling for this matter on
January 14, 2008. Searcy filed an EEO formal complaint
on February 6, 2008, alleging discrimination on the basis
of race. Specifically, Searcy complained that his retire-
ment contributions were forfeited due to forced termina-
tion on the basis of race. The EEOC complaint was
dismissed on July 21, 2009, by an administrative judge
(“AJ”) for untimely EEO counselor contact, noting that
“the alleged discriminatory act occurred in June 2006, but
complainant did not initiate contact with an EEO coun-
selor until January 14, 2008.” The AJ further noted that
the complaint appeared to be a second attempt to litigate
a prior EEO complaint or improperly collaterally attack
the administration of his retirement benefits when the
discrimination occurred at a different agency in the late
1970s.
5 SEARCY v. MSPB
On May 26, 2009, Searcy submitted a complaint to the
Department of Labor (“DOL”) alleging that his veteran’s
preference was used to intentionally subject him to a
racially discriminatory work environment and to deny
him of USERRA/VRRA benefits of employment. Searcy
requested Office of Special Counsel (“OSC”) or Veterans’
Employment and Training Service (“VETS”) assistance for
his claim. On August 31, 2009, Searcy’s request for
assistance from VETS for his USERRA/VRRA claim was
denied, and Searcy was informed of a right to seek OSC
assistance or to file a USERRA/VRRA appeal to the
MSPB. The letter received by Searcy disclaimed any
VEOA violations stemming out of the actions in the late
1970s, but did not address the alleged continuing VEOA
violations. On December 29, 2009, the OSC denied
Searcy’s request for OSC assistance regarding his
USERRA/VRRA claims. The OSC letter did not address
any of Searcy’s VEOA claims.
II.
The present petitions for review arise out of Searcy’s
initial appeal to the Board, Searcy v. Department of
Agriculture, No. AT-4324-10-0356-I-1, on January 9, 2010,
of his 2008 EEOC complaint, including a complaint of a
violation of his due process rights for withdrawal of his
retirement funds, and his complaints and requests for
assistance from VETS and OSC regarding his
USERRA/VRRA and alleged VEOA claims. On February
1, 2010, the AJ ordered that Searcy provide evidence
showing USERRA jurisdiction over his claims and proof
that he had exhausted his claim within the Department of
Labor. On March 19, 2010, following Searcy’s response,
the AJ dismissed Searcy’s appeal for lack of jurisdiction,
noting that he had not shown any evidence suggesting
Board jurisdiction existed over his USERRA/VRRA
claims. Searcy petitioned the Board for review of this
SEARCY v. MSPB 6
decision on March 21, 2010. On November 30, 2010, the
Board granted Searcy’s petition for review, reversed the
AJ’s decision, and remanded for further consideration.
The Board decided: (1) that Searcy had established
USERRA/VRRA jurisdiction, (2) that the AJ was required
to provide Searcy with the opportunity to establish VEOA
jurisdiction, and (3) that the AJ was required to docket
Searcy’s constructive termination claim as a new appeal.
On December 10, 2010, pursuant to the Board’s orders,
the AJ ordered Searcy to present evidence showing VEOA
jurisdiction.
A. Searcy v. MSPB
In accordance with the AJ’s December 10, 2010, order,
Searcy filed allegations on December 13, 2010 regarding
his constructive termination claim. The USDA responded
on December 29, 2010, disputing Searcy’s claims regard-
ing separation from the USDA, and requesting that
Searcy’s appeal be denied as untimely and as lacking
jurisdiction. On March 17, 2011, the AJ ordered Searcy to
file evidence showing that he had timely appealed or that
he had good cause for a delay in filing. Searcy responded
that he was not made aware of his appeal rights. Despite
this contention, on March 20, 2011, the AJ dismissed
Searcy’s constructive termination claim as untimely. The
AJ concluded that Searcy had not exercised due diligence
in discovering his appeal rights and filing his appeal,
regardless of whether notice of appeal rights was required
for his separation. Searcy petitioned the Board for review
of the AJ’s dismissal on March 31, 2011.
On November 10, 2011, the Board denied review of
the AJ’s dismissal. The Board explained that, if notice of
appeal rights was not required, Searcy had not explained
when or how he learned of those rights, if he had exer-
cised due diligence in discovering them, or that he had
7 SEARCY v. MSPB
exercised due diligence on filing his appeal. The Board
further explained that, if notice of appeal rights were
required, Searcy did not show that he was diligent in
filing after he learned he could do so. In particular, the
Board referenced the delay between Searcy’s August 27,
1997 EEO counseling and his 2009 complaint as evidence
of a lack of diligence and rejected Searcy’s request for
tolling.
B. Searcy v. USDA
Also in response to the December 10, 2010 order,
Searcy filed allegations with the Board regarding his
USERRA/VRRA claim and jurisdiction over his VEOA
claim. The AJ held hearings on the merits of the
USERRA/VRRA claims and the jurisdiction over the
VEOA claims, including a telephonic status conference.
Following this conference, Searcy submitted a list of six
jobs about which he alleges he inquired, but for which he
had not necessarily completed formal application. On
March 30, 2011, the AJ dismissed Searcy’s VEOA claim
for lack of jurisdiction and his USERRA/VRRA claims for
failure to state a claim upon which relief can be granted.
The AJ explained that the USERRA was not in effect for
Searcy’s pre-1994 withdrawal of funds, and that, there-
fore, he had no USERRA claim for the withdrawal. The
AJ further explained that Searcy had failed to allege any
facts showing that he had actually applied for any posi-
tions such that he would have a USERRA claim for non-
selection. The AJ also dismissed any VRRA claims be-
cause Searcy had not alleged reserve status when his
retirement funds were withdrawn, and thus he had no
protection under VRRA. Finally, the AJ dismissed the
VEOA claims for lack of jurisdiction because Searcy had
not provided any evidence showing that he had exhausted
his remedies with the Department of Labor over these
claims. Searcy petitioned the Board for review.
SEARCY v. MSPB 8
On December 16, the Board denied Searcy’s petition.
The Board adopted the AJ’s reasoning, noting that Searcy
had failed to explain how the notice of appeal rights or
notice of withdrawal were related to his Reserve status
under VRRA and that Searcy’s DOL complaint pertained
to the USERRA, rather than VEOA.
Searcy timely appealed both Board actions, in Searcy
v. Merit Systems Protection Board, No. 2012-3033, on
November 29, 2011, and in Searcy v. Department of Agri-
culture, No. 2012-3054, on December 29, 2011.
III.
Our standard of review in an appeal from the Board is
limited by statute. 5 U.S.C. § 7703(c); see Carr v. Soc.
Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999); O’Neill
v. Office of Pers. Mgmt., 76 F.3d 363, 364-65 (Fed. Cir.
1996). We may reverse a decision of the Board only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2006).
A.
We first address Searcy’s claim in Searcy v. Merit Sys-
tems Protection Board that the Board erred in dismissing
his constructive resignation claim. If an appeal from an
adverse agency action is not filed within the period pro-
vided by regulation, the appeal will be dismissed unless “a
good reason for the delay is shown.” 5 C.F.R. § 1201.22(c)
(2012). The MSPB has held that “[a]s a general matter,
an agency's failure to notify an employee of his or her
Board appeal rights under circumstances requiring it to
do so will justify a waiver of the filing deadline.” Gingrich
v. United States Postal Serv., 67 M.S.P.R. 583, 587 (1995);
9 SEARCY v. MSPB
see also Shiflett v. United States Postal Serv., 839 F.2d
669, 674 (Fed. Cir. 1988).
Resignations and retirements are presumed to be vol-
untary, however, as is separation by abandonment. See
Latham v. United States Postal Serv., 909 F.2d 500, 502
(Fed. Cir. 1990);.Tolentino v. Dep’t of Treasury, 81
M.S.P.R. 258, 262 (1999) (citing Poschl v. United States,
206 Ct. Cl. 672 (1975)). Thus, because an agency nor-
mally has no way of knowing that such an employee
considers his separation involuntary, the agency has no
obligation to notify the employee of his right to an appeal
to the Board unless the employee “puts the government
on notice that he views his resignation as involuntary.”
Clark v. United States Postal Serv., 989 F.2d 1164, 1169
(Fed. Cir. 1993).
Where the agency has no obligation to inform an em-
ployee of his right to appeal a Board action, the employee
must act diligently in discovering a right of appeal and
promptly filing upon learning of the right of appeal.
Gaynor v. United States Postal Serv., 43 M.S.P.R. 481,
484 (1990). The appellant here bears the burden of proof,
by a preponderance of the evidence, with respect to time-
liness of appeal. 5 C.F.R. §§ 1201.56(a)(2)(ii), 1201.22(c)
(2012). This court will not substitute its own judgment
for that of the Board in granting a waiver of a time limit
based on a showing of good cause. Mendoza v. Merit Sys.
Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992).
Searcy argues the agency had an obligation to inform
him of his right to appeal and that the Board abused its
discretion by not waiving the filing deadline for his con-
structive resignation claim. 1 The AJ below applied some
1 Searcy argues that equitable tolling should apply,
but did not raise this argument with the AJ. The Board
correctly did not consider this argument because Searcy
SEARCY v. MSPB 10
of the factors from Walls v. Merit Systems Protection
Board, 29 F.3d 1578 (Fed. Cir. 1994), in deciding whether
there was good cause for waiving the deadline. Those
non-exclusive factors are: (1) length of delay, (2) whether
the appellant was notified of the time limit, (3) the exis-
tence of circumstances beyond the appellant’s control
which affected his ability to comply with the time limits,
(4) the degree to which negligence by the appellant has
been shown to be present or absent, and (5) circumstances
which show that any neglect involved is excusable ne-
glect. Id. at 1582.
The AJ determined that, even assuming notice was
required, Searcy’s appeal of a purported adverse action is
untimely. As the AJ stated, Searcy has not produced
evidence showing when he first learned of his appeal
rights and that he used diligence in filing his appeal. And
the Board noted Searcy’s initial EEOC appeal in 1999 as
evidence that Searcy did not act with diligence in filing
his appeal. The Board found, moreover, that there is
nothing in the record which indicates that notice was
required. The Board found that Searcy produced no
evidence that he notified the USDA of a belief that his
separation was involuntary, and that the long delay of
thirty-three years between his separation and filing with
the MSPB justified a ruling that Searcy did not act in a
reasonably prudent fashion in discovering any appeal
rights he might have possessed.
We agree. Searcy does not allege that he put anyone
on notice at the time he left the USDA employ that he
considered his termination to be involuntary. Absent
such notice by Searcy to the USDA, no notification to
Searcy of his right to an appeal was required. See Clark,
failed to show new evidence that merited review of a new
argument. See 5 C.F.R. § 1201.114(i).
11 SEARCY v. MSPB
989 F.2d at 1169. Therefore, we find that the Board’s
conclusion that Searcy’s appeal was untimely was not an
abuse of discretion.
B.
Searcy also argues, in Searcy v. USDA, that the Board
abused its discretion by dismissing his USERRA and
VRRA claims for failure to state a claim upon which relief
can be granted. Searcy alleges, generally, the following
violations of the USERRA and the VRRA: (1) false decla-
ration of abandonment, resulting in termination of his
veterans’ preference status; (2) false due process certifica-
tion for withdrawal of funds from his CSRS account; (3)
failure to provide notice of appeal rights; (4) ongoing
denial of re-employment.
1.
Searcy did not explicitly assert substantive rights un-
der the USERRA to the Board, but, as the Board did
below, we first address his claims under the substantive
provisions of the USERRA, enacted in 1994 as the succes-
sor statute to the VRRA. As the Board explained, the
USERRA grants the MSPB jurisdiction to hear VRRA
claims, but the USERRA’s substantive law is not retroac-
tive. See Fernandez v. Dep’t of Army, 234 F.3d 553, 555-
57 (Fed. Cir. 2000). The USERRA provides protection for
veterans, reservists, and active duty members of the
military from discrimination in reemployment on the
basis of their military service. 38 U.S.C. § 4311(a) (2006).
To make a claim for discrimination under the USERRA,
“claimants must show evidence of discrimination other
than the fact of non-selection and membership in the
protected class.” Sheehan v. Dep’t of the Navy, 240 F.3d
1009, 1015 (Fed. Cir. 2001).
SEARCY v. MSPB 12
With the exception of his claim of continued reem-
ployment discrimination, Searcy’s claims all occurred in
the 1970’s. The USDA declared that Searcy abandoned
his position in 1977, his funds were withdrawn in 1979,
and notice of appeal rights, if due, would have been due in
1979. As these claims accrued prior to 1994, the USERRA
does not provide a valid basis for Searcy’s claims. We
agree with the Board’s dismissal of these three claims,
and find that it was not an abuse of discretion.
Searcy’s claims of continued reemployment discrimi-
nation were also correctly dismissed for failure to state a
claim. Searcy claims to have inquired about or applied for
several jobs since 2005, including two with the USDA
(none with the Forest Service). But Searcy did not state
whether he had completed or submitted a formal applica-
tion for any of these jobs. As the Board determined,
although Searcy has proven that he is a veteran under
§ 4311(a), he has not proven non-selection because he has
not shown actual application—let alone denial—for any
position. Further, even if he had shown non-selection, he
has shown no evidence of discrimination. See Sheehan,
240 F.3d at 1015. The dismissal of this claim was not,
accordingly, an abuse of discretion.
2.
The Board also analyzed and dismissed Searcy’s pre-
1994 claims for failure to state a claim under the VRRA.
The VRRA was not as broad as the USERRA; it only
provided active military reservists protection from reem-
ployment discrimination on the basis of their membership
in the military reserves. 38 U.S.C. § 2108(b)(3) (1988).
Searcy acknowledges in his reply brief that he was not a
member of the reserves at the time the offending acts
occurred. As such, Searcy has no protection from dis-
crimination under the VRRA for those claims. The dis-
13 SEARCY v. MSPB
missal of Searcy’s claims under the VRRA was not, there-
fore, an abuse of discretion.
C.
Searcy also argues that the dismissal of his VEOA
claim for lack of jurisdiction was an abuse of discretion.
To establish Board jurisdiction over an appeal brought
under the VEOA, an appellant must:
(1) show that he exhausted his remedy with DOL
and (2) make nonfrivolous allegations that (i) he is
a preference eligible within the meaning of the
VEOA, (ii) the action(s) at issue took place on or
after the October 30, 1998 enactment date of the
VEOA, and (iii) the agency violated his rights un-
der a statute or regulation relating to veteran’s
preference.
Abrahamsen v. Dep’t of Veterans Affairs, 94 M.S.P.R. 377,
379 (citing 5 U.S.C. § 3330a). Whether the Board has
jurisdiction over an appeal is a question of law that the
court reviews de novo. Stoyanov v. Dep’t of Navy, 474
F.3d 1377, 1379 (Fed. Cir. 2007). The petitioner has the
burden of establishing jurisdiction by the preponderance
of the evidence. 5 C.F.R. § 1201.56(a)(2)(i) (2012); Stoy-
anov, 474 F.3d at 1379.
Searcy asserts that the enforcement of his prior denial
of his VRRA rights caused continuing VEOA violations
after the VEOA’s 1998 enactment, specifically when other
applications were being accepted without consideration of
Searcy’s preference-eligible status. Searcy also argues
that the determination that he has not shown that he has
exhausted his remedies under the VEOA with the DOL is
an abuse of discretion. The USDA argues that the letter
from the DOL produced by Searcy does not support
Searcy’s position because it is only evidence—at best—of
SEARCY v. MSPB 14
an informal allegation that cannot be substituted for a
formal complaint. 2
To exhaust his remedy with the DOL under the
VEOA, an appellant must inform the agency of the precise
ground of the charge with sufficient basis to pursue an
investigation. Gingery v. Dep’t of Treasury, 403 F. App’x
498 (Fed. Cir. 2010). As the Board correctly found, the
DOL letter’s reference to possible claims under the VEOA
is insufficient to demonstrate exhaustion of remedies. In
fact, the letter from the DOL to Searcy explicitly identifies
fundamental flaws in Searcy’s complaint and identifies
steps necessary for Searcy to make a proper complaint
under the VEOA. Specifically, Searcy at no point specifi-
cally stated the jobs for which he applied and as to which
he asserts his veteran’s preference rights under VEOA
were violated. The Board’s dismissal of Searcy’s VEOA
claim for lack of jurisdiction was proper.
D.
Searcy additionally alleges that the lack of notice of
the removal of his retirement funds in 1979 was a viola-
tion of his procedural due process rights. The OPM debt
collection procedures currently require that the creditor
agency, on both Form 1552 and Standard Form 2805,
include a typed and signed certification of due process
rights in compliance with the OPM’s standards. Specifi-
cally, Searcy claims that the USDA fraudulently filled out
OPM Form 1552’s certification of due process rights. But,
2 The parties dispute whether the DOL letter is
properly included in the record before us, but, for pur-
poses of determining jurisdiction, it is ultimately irrele-
vant to the conclusion because we find it insufficient to
establish exhaustion of remedies with the DOL. Fur-
thermore, the reference to the DOL letter by the Board
suggests that it is in the record.
15 SEARCY v. MSPB
Searcy has not produced this form, or identified any
evidence upon which to base an allegation of fraud, and
the Standard Form 2805 used to collect Searcy’s debt from
his retirement account contained no due process certifica-
tion.
The Board’s jurisdiction is “limited to those areas spe-
cifically granted by statute or regulation.” Cowan v.
United States, 710 F.2d 803, 805 (Fed. Cir. 1983). The
burden of establishing jurisdiction by a preponderance of
the evidence rests with the appellant, 5 C.F.R.
§ 1201.56(a)(2)(i), who “must make a nonfrivolous allega-
tion of jurisdictional facts.” Lourens v. Merit Sys. Prot.
Bd., 193 F.3d 1369, 1370 (Fed. Cir. 1999). In Miller v.
Office of Personnel Management, we found that the Board
had jurisdiction, concurrent with OPM jurisdiction, to
ensure that proper due process procedures were followed
by a claimant agency pursuant to OPM regulations, even
though the Board did not have jurisdiction to hear a
challenge to the action by the claimant agency. 449 F.3d
1374, 1379-80 (Fed. Cir. 2006). But, in determining that
the Board possessed jurisdiction to consider those specific
due process concerns, the court in Miller relied on stat-
utes and regulations that became law after Searcy’s
claims accrued. The first, 31 U.S.C. § 3716, governing
administrative offset, came into effect in 1983. See 96
Stat. 2467 (1983). The second, 31 C.F.R. § 901.3(b)(4),
came into effect in 2000. See 65 Fed. Reg. 70390-01 (Nov.
22, 2000). Absent a similar OPM regulation or statute
that would confer jurisdiction at the time that Searcy’s
claims accrued—and we are aware of none that would
apply to the attachment of Searcy’s retirement account—
the reasoning set forth in Miller cannot apply here.
We therefore find that the Board lacks jurisdiction
over Searcy’s claims for violations of due process in con-
SEARCY v. MSPB 16
nection with the removal of funds from his retirement
account.
IV.
We have considered Searcy’s arguments and find
them unpersuasive. The Board’s decisions in Searcy v.
Merit Systems Protection Board, No. AT-0752-11-0243-I-1,
and Searcy v. Department of Agriculture, No. AT-4324-10-
0356-B-1, are affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.