Beyers v. State , 593 F. App'x 980 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH P. BEYERS,
Petitioner,
v.
DEPARTMENT OF STATE,
Respondent.
______________________
2014-3071
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-11-0538-M-1.
---------------------
KENNETH P. BEYERS,
Petitioner,
v.
DEPARTMENT OF STATE,
Respondent.
______________________
2014-3096
______________________
2 BEYERS v. STATE
Petition for review of the Merit Systems Protection
Board in No. DC-4324-11-0661-I-4.
______________________
Decided: December 3, 2014
______________________
KENNETH P. BEYERS, of Arlington, Virginia, pro se.
AUSTIN M. FULK, and MICHAEL D. AUSTIN, Trial At-
torneys, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC,
for respondent. With them on the briefs were STUART F.
DELERY, Assistant Attorney General, ROBERT E.
KIRSHMAN, JR., Director, and STEVEN J. GILLINGHAM,
Assistant Director.
______________________
Before LOURIE, DYK, and REYNA, Circuit Judges.
PER CURIAM.
These consolidated appeals stem from an agency deci-
sion to rescind a conditional offer made to Kenneth P.
Beyers (“Beyers”) for employment. Beyers appeals from
two final orders of the Merit Systems Protection Board
(the “Board”) in companion cases in which the Board
denied Beyers’ requests for corrective action under the
Veterans Employment Opportunities Act (“VEOA”) and
the Uniformed Services Employment and Reemployment
Rights Act (“USERRA”). Beyers v. Dep’t of State, No. DC-
3330-11-0538-M-1, 120 M.S.P.R. 573 (2014) (“Beyers I”);
Beyers v. Dep’t of State, No. DC-4324-11-0661-I-4, 2014
WL 5154051 (M.S.P.B. Feb. 12, 2014) (“Beyers II”). Be-
cause the Board did not err in denying Beyers’ requests,
we affirm.
BEYERS v. STATE 3
BACKGROUND
Beyers, a veteran, applied for the position of Diplo-
matic Security Engineering Officer in the Foreign Service
of the Department of State (the “agency”). In August
2009, he received a conditional offer of appointment as a
Foreign Service Career Candidate, subject to satisfactory
completion of medical clearance, security clearance, and a
suitability review. Appeal No. 2014-3071 Resp’t’s App.
41–44. During the suitability review, the agency’s Final
Review Panel found Beyers not suitable for employment
with the Foreign Service and terminated his candidacy in
November 2010. That decision was upheld by the Appeals
Committee of the Board of Examiners for the Foreign
Service in March 2011. The agency’s determination that
Beyers was unsuitable was based on findings of (1) mis-
conduct in prior employment, (2) conduct demonstrating
poor judgment or a lack of discretion, and (3) a lack of
financial responsibility. Id. at 46–51.
Beyers appealed to the Board, challenging the merits
of the suitability determination (the “suitability appeal”).
The Board dismissed that appeal for lack of jurisdiction
because relevant regulations prohibited the Board from
reviewing the merits of the agency’s suitability determi-
nation. Beyers v. Dep’t of State, No. DC-0731-11-0467-I-1,
2011 WL 5155194 (M.S.P.B. Apr. 25, 2011). Beyers did
not appeal from that decision, which became final.
I
In his suitability appeal, Beyers also claimed that the
agency violated the VEOA in processing his application.
The administrative judge (“AJ”) to whom the case was
assigned separated the VEOA claim into a second appeal
(the “VEOA appeal”). The AJ then ordered Beyers to file
documentation to establish that the Board had jurisdic-
tion over this issue and directed the government to file a
response. Beyers asserted that the Board had jurisdiction
over his VEOA appeal because the agency was being
4 BEYERS v. STATE
accused of violating his veterans’ preference rights under
22 U.S.C. § 3941(c) and 22 C.F.R. § 11.20(a)(4). The
government challenged the Board’s jurisdiction and
argued that, even if the Board had jurisdiction, Beyers
failed to state a VEOA claim.
The AJ issued an initial decision, holding that Beyers
met the jurisdictional requirements of a VEOA claim, but
nevertheless failed to state such a claim. Beyers v. Dep’t
of State, No. DC-3330-11-0538-I-1, 2011 WL 5403685(M.S.P.B. May 20, 2011). The AJ found that Beyers’
VEOA appeal could be decided on the written record and
denied his request for a hearing. Id. at ¶ 11. The AJ
noted that “neither the VEOA, nor any other statute or
regulation cited by [Beyers] in his numerous pleadings,
prohibit an agency from determining that a preference
eligible candidate is not qualified for a position because of
reasons not related to veterans status.” Id. at ¶ 15. The
AJ thus denied Beyers’ request for corrective action under
the VEOA.
On Beyers’ petition for review, the full Board affirmed
and adopted the AJ’s initial decision as the Board’s final
decision, except as modified by the Board’s final order.
Beyers v. Dep’t of State, No. DC-3330-11-0538-I-1, 2012
WL 11879028 (M.S.P.B. Jan. 30, 2012). The Board rea-
soned in its final order that, because it lacked jurisdiction
over the suitability appeal, review of the merits of the
suitability determination in the VEOA appeal was barred
by “the law of the case,” and accordingly dismissed the
VEOA appeal for failure to state a claim for which relief
may be granted. Id. at *1.
Beyers appealed to this court, and we concluded that
the Board incorrectly relied on the law of the case princi-
ple. Beyers v. Dep’t of State, 505 F. App’x 951, 953 (Fed.
Cir. 2013). We reasoned that “insofar as the merits of the
suitability determination may serve as a factual predicate
for a valid VEOA claim, the Board was not foreclosed from
BEYERS v. STATE 5
considering the merits of the suitability determination.”
Id. While we agreed with the government that “the
VEOA does not generally accord any special treatment to
veterans who are deemed unsuitable to hold a particular
position,” we nonetheless noted that “Beyers can establish
a VEOA claim if he successfully alleges that [the] agency
has violated [his] rights under any statute or regulation
relating to veterans’ preference.” Id. at 954 (alterations in
original) (internal quotation marks omitted). We accord-
ingly vacated the Board’s final order and remanded the
case for the Board to determine, in the first instance,
whether it “may (or must) . . . address suitability issues in
the context of [Beyers’] VEOA claim.” Id.
On remand, the full Board denied Beyers’ request for
corrective action under the VEOA. Beyers I, 120 M.S.P.R.
at 578. The Board found that Beyers “ha[d] not identified
any statute or regulation relating to veterans’ preference
allowing an agency to disregard findings made during a
suitability determination that would otherwise disqualify
a preference eligible.” Id. at 577. The Board noted that
neither 22 U.S.C. § 3941(c) nor 22 C.F.R. § 11.20(a)(4), on
which Beyers relied, “create[d] specific obligations for the
agency with respect to the assessment of suitability of
preference eligibles.” Id. The Board, moreover, declined
to address Beyers’ argument that the agency violated 5
U.S.C. § 3311(2) because Beyers did not raise it before the
Department of Labor and therefore failed to exhaust his
administrative remedies. Id. at 576 n.3.
II
In addition to his suitability and VEOA appeals, Bey-
ers filed a third claim at the Board in 2011, alleging that
the agency violated the USERRA by discriminating
against him on the basis of his prior military affiliation
(“the USERRA appeal”). After discovery and a hearing in
July 2013, the AJ issued an initial decision denying
Beyers’ request for corrective action under the USERRA.
6 BEYERS v. STATE
Beyers v. Dep’t of State, No. DC-4324-11-0661-I-4, 2013
WL 6870082 (M.S.P.B. Aug. 1, 2013).
Specifically, the AJ found that all of the agency’s wit-
nesses testified that Beyers’ veteran status did not influ-
ence their decision to rescind the agency’s conditional
offer, and the AJ found those witnesses’ testimony credi-
ble. Id. at ¶ 13. The AJ found that Beyers failed to show
that his prior military service or his status as a former
military service member was a substantial or motivating
factor in the agency’s decision to rescind its conditional
offer. Id. at ¶ 14. The AJ also noted that 37 years sepa-
rated Beyers’ discharge from military service in 1974 and
the agency’s decision in 2011, which was circumstantial
evidence that his military service played no role in the
agency’s decision to rescind its conditional offer. Id.
Finally, the AJ found that, “while the burden in this case
did not shift to the agency to prove that its action would
have been taken despite [Beyers’] protected status, indeed
the record established that fact.” Id. at ¶ 15.
Beyers petitioned for review of the AJ’s USERRA de-
cision. The full Board affirmed and adopted the AJ’s
initial decision as the Board’s final decision. Beyers II,
2014 WL 5154051, at *1. Addressing the various argu-
ments made by Beyers, the Board held that (1) the AJ’s
findings of fact were correct; (2) the AJ properly weighed
the circumstantial evidence; (3) the Board would not
disturb the AJ’s credibility findings; (4) Beyers had not
shown harmful error; (5) the AJ did not abuse his discre-
tion in evidentiary and discovery rulings; and (6) Beyers
had not shown that the AJ was biased. Id. at *2–8.
Beyers appealed to this court from the Board’s final
decisions in the VEOA appeal and the USERRA appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
BEYERS v. STATE 7
DISCUSSION
The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion if it was “(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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reasona-
ble mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
I
We first consider whether the Board erred in denying
Beyers’ request for corrective action under the VEOA. To
establish a claim under the VEOA, a preference eligible
veteran must show that an agency has violated his rights
under any statute or regulation relating to veterans’
preference with respect to federal employment. See 5
U.S.C. § 3330a(a)(1)(A).
Beyers argues that the Board failed to conduct a sub-
stantive review of the agency’s suitability determination
and incorrectly held on remand, without further develop-
ing the factual record, that the agency did not violate any
statute or regulation relating to veterans’ preference. The
government responds that Beyers has not alleged any
fact, even if true, that would establish his VEOA claim.
The government maintains that the Board correctly
determined that Beyers failed to identify any statute or
regulation relating to veterans’ preference that was
violated by the agency.
We agree with the government that the Board did not
err in denying Beyers’ VEOA claim on remand. Beyers
8 BEYERS v. STATE
alleged that the agency violated 22 U.S.C. § 3941(c) and
22 C.F.R. § 11.20(a)(4). Section 3941(c) does provide in
relevant part that “[t]he fact that an applicant for ap-
pointment as a Foreign Service officer candidate is a
veteran or disabled veteran shall be considered an affirm-
ative factor in making such appointments.” Section
11.20(a)(4) likewise provides that “[v]eterans’ preference
shall apply to the selection and appointment of Foreign
Service specialist career candidates.” However, we agree
with the Board that neither provision “creates specific
obligations for the agency with respect to the assessment
of suitability” or requires the agency to “disregard find-
ings made during a suitability determination that would
otherwise disqualify a preference eligible.” Beyers I, 120
M.S.P.R. at 577.
Moreover, the Board correctly found that Beyers
failed to identify any other statute or regulation relating
to veterans’ preference that mandates a different or lower
suitability standard be applied to his suitability review.
As we have stated, “the VEOA does not enable veterans to
be considered for positions for which they are not quali-
fied.” Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316,
1319 (Fed. Cir. 2012). The Board thus did not err in
declining to undertake a substantive review of the agen-
cy’s suitability determination on remand.
We have considered Beyers’ remaining arguments,
but find them unpersuasive. We therefore conclude that
the Board did not err in denying Beyers’ request for
corrective action under the VEOA.
II
We next consider whether the Board erred in denying
Beyers’ request for corrective action under the USERRA.
An employee making a USERRA claim of discrimination
bears “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 employ-
BEYERS v. STATE 9
ment action.” Sheehan v. Dep’t of the Navy, 240 F.3d
1009, 1013 (Fed. Cir. 2001). When the employee success-
fully makes this initial showing, the burden then shifts to
the agency “to prove the affirmative defense that legiti-
mate reasons, standing alone, would have induced the
employer to take the same adverse action.” Id. at 1014.
Beyers argues that the Board committed various fac-
tual and legal errors. He challenges the AJ’s credibility
determinations. He also asserts that the AJ exhibited
bias and abused his discretion in evidentiary and discov-
ery rulings. The government responds that substantial
evidence supports the Board’s finding that the agency did
not discriminate against Beyers on the basis of his mili-
tary service and that the Board correctly applied the law.
We agree with the government that substantial evi-
dence supports the Board’s finding that Beyers’ prior
military service or his status as a former military service
member was not a substantial or motivating factor in the
agency’s decision to rescind its conditional offer of em-
ployment. After a hearing, the AJ credited the testimony
of the agency’s witnesses that Beyers’ veteran status “in
no way influenced their decision to rescind the agency’s
conditional offer.” Beyers, 2013 WL 6870082, at ¶ 13. As
we have stated, “an evaluation of witness credibility is
within the discretion of the Board and that, in general,
such evaluations are ‘virtually unreviewable’ on appeal.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1313 (Fed. Cir.
2010) (quoting Clark v. Dep’t of Army, 997 F.2d 1466,
1473 (Fed. Cir. 1993)).
Moreover, the Board properly considered the long in-
tervening period of time between Beyers’ discharge from
military service and the agency’s decision as circumstan-
tial evidence that the agency did not discriminate against
Beyers on the basis of his prior military service. See
Sheehan, 240 F.3d at 1014. Thus, substantial evidence
10 BEYERS v. STATE
supports the Board’s finding that the agency did not
violate the USERRA.
We have considered Beyers’ remaining arguments,
but find them unpersuasive. We therefore conclude that
the Board did not err in denying Beyers’ request for
corrective action under the USERRA.
CONCLUSION
For the foregoing reasons, the decisions of the Board
in both appeals are affirmed.
AFFIRMED
COSTS
No costs.