Tootle v. Merit Systems Protection Board , 559 F. App'x 998 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SAMUEL EARL TOOTLE, II,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2013-3182
______________________
Petition for review of the Merit Systems Protection
Board in No. AT4324120819-I-1.
______________________
Decided: March 7, 2014
______________________
SAMUEL EARL TOOTLE, II, of Biloxi, Mississippi, pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC. With him on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before REYNA, WALLACH, and TARANTO, Circuit Judges.
2 TOOTLE v. MSPB
PER CURIAM.
Samuel Earl Tootle, II, seeks review of a decision by
the Merit Systems Protection Board that it lacked juris-
diction over his appeal under the Uniformed Services
Employment Rights Act of 1994 (“USERRA”), codified at
38 U.S.C. §§ 4301-335. We affirm.
BACKGROUND
Mr. Tootle served in the United States Navy from
April 1979 until June 1993. Although Mr. Tootle received
three honorable discharges during his military career, Mr.
Tootle’s fourth and final discharge was dishonorable,
based on a court martial conviction. As a result of his
conviction, Mr. Tootle was incarcerated from November 6,
1997, until October 16, 2003.
Effective August 28, 2011, the Department of Veter-
ans Affairs (the “agency”) appointed Mr. Tootle to a
position as a Housekeeping Aid at the Veterans Health
Care System in Biloxi, Mississippi. This appointment
was subject to a two-year probationary period. On August
29, 2011, Mr. Tootle filled out Optional Form 306, Decla-
ration for Federal Employment. In response to question 9
on that form, which asks “During the last 10 years, have
you been imprisoned, been on probation, or been on
parole?,” Mr. Tootle responded “No.”
The agency conducted a routine background investi-
gation of Mr. Tootle during the first few months of his
probationary employment. It learned that Mr. Tootle had
been “convicted of a court martial and received a dishon-
orable discharge from the United States Navy and incar-
cerated from November 6, 1997 to October 16[,] 2003.”
This meant that Mr. Tootle’s response to question 9 on
Optional Form 306 was inaccurate. On November 1,
2011, the agency notified Mr. Tootle of the results of its
investigation and that it intended to terminate his ap-
pointment in accordance with 5 C.F.R. § 315.805. On
TOOTLE v. MSPB 3
June 1, 2012, after receiving Mr. Tootle’s response to the
allegations, the agency notified him that it would be
terminating his employment as of June 16, 2012. Mr.
Tootle resigned from his position on June 15, 2012, one
day before the effective date of his termination.
On July 11, 2012, Mr. Tootle filed a claim under
USERRA with the Veterans’ Employment and Training
Service, which then assigned the claim to the Office of
Special Counsel in accordance with the applicable law.
On July 30, 2012, the Office of Special Counsel notified
Mr. Tootle that it had completed its review of his com-
plaint, but that it was unable to take further action
because his dishonorable discharge meant that he was not
entitled to the protections of USERRA.
Mr. Tootle then filed an appeal with the Merit Sys-
tems Protection Board alleging (1) that the decision to
terminate his employment violated agency procedures,
was a prohibited personnel practice, or was not in accord-
ance with law, (2) that the agency violated his rights
under USERRA, and (3) that the agency violated a law or
regulation relating to a preference for veterans. The
administrative law judge docketed Mr. Tootle’s appeal as
three separate appeals.
On September 12, 2012, an administrative law judge
dismissed the first appeal for lack of jurisdiction. The
next day, the administrative law judge issued orders in
the two other appeals, addressing whether Mr. Tootle’s
USERRA and veterans’ preference claims were within the
Board’s jurisdiction. The USERRA order, which is the
subject of the present appeal, specifically explains that
there are two types of cases arising under USERRA that
are within the Board’s jurisdiction (discrimination and
reemployment cases) and details the “non-frivolous alle-
gations,” i.e., allegations “supported by affidavits or other
evidence,” that an appellant would have to make in order
to come within either category. The orders gave Mr.
4 TOOTLE v. MSPB
Tootle twelve days to file a response that addressed the
identified jurisdictional requirements.
On September 26, 2012, Mr. Tootle filed a motion re-
questing a 60-day extension of time to file a response to
the “COURTS MULTIPLE ORDERS.” Although Mr.
Tootle did not specify the orders for which he was seeking
an extension, it appears that he meant to ask for an
extension to respond to the September 12, 2012, dismissal
for lack of jurisdiction as well as the two September 13,
2012 jurisdictional orders. On October 4, 2012, the ad-
ministrative law judge granted Mr. Tootle’s request in
part, allowing him until October 18, 2012, to respond to
the “Board’s September 13th Order.” The administrative
law judge did not clarify which of the Board’s September
13, 2012 jurisdictional orders it was referring to, but the
docket number indicates that it was the USERRA ap-
peal. 1
Mr. Tootle filed no response to the USERRA jurisdic-
tional order, and on November 21, 2012, the administra-
tive law judge issued an initial decision on the merits.
The judge stated that, in order to “establish jurisdiction
over a USERRA discrimination appeal under 38 U.S.C.
§ 4311(a), an appellant must allege that: (1) he performed
duty or has an obligation to perform duty in a uniformed
service of the United States; (2) the agency denied his
initial employment, reemployment, retention, promotion,
or any benefit of employment; and (3) the denial was due
to the performance of duty or obligation to perform duty
in the uniformed service.” Tootle v. Dep’t of Veterans
Affairs, No. AT-4324-12-0819-I-1, slip op. at 3 (M.S.P.B.
1 There is no indication in the record before us that
the administrative law judge separately addressed Mr.
Tootle’s requests for extensions to respond to the other
two orders, and we therefore understand those to have
been denied.
TOOTLE v. MSPB 5
Nov. 21, 2012). The judge found that, although Mr. Tootle
served in the military and was the subject of an adverse
employment decision, he failed to allege that the proposed
removal resulted from his performance of his military
service. The judge also noted that, even if Mr. Tootle had
made such an allegation, he was disqualified from seeking
relief under USERRA because of his dishonorable dis-
charge. The judge therefore dismissed the appeal for lack
of jurisdiction.
Mr. Tootle filed a petition for review with the Board.
In his petition, Mr. Tootle alleged for the first time that
the agency had discriminated against him when it pro-
posed his removal based on his court martial conviction
and dishonorable discharge. On August 22, 2013, the
Board denied the petition for review and issued a final
order affirming the dismissal. The Board explained that,
although Mr. Tootle now alleged that the agency had
discriminated against him for incidents that occurred
during his military service, it would not consider that
allegation because Mr. Tootle had not made the allegation
until his petition for review and he had failed to make a
showing that it was based on new and material evidence
not previously available. The Board also found that it
lacked jurisdiction on the independent ground that Mr.
Tootle’s dishonorable discharge terminated his entitle-
ment to pursue a claim under USERRA.
Mr. Tootle appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
Whether the Board has jurisdiction over an appeal is
a question of law, which we review without deference.
Hayes v. U.S. Postal Serv., 390 F.3d 1373, 1376 (Fed. Cir.
2004).
The Board has jurisdiction over claims made by feder-
al employees who are entitled to the rights and protec-
6 TOOTLE v. MSPB
tions of USERRA. 38 U.S.C. §§ 4304(1), 4324(b); 5 C.F.R.
§ 1208.2(a). That Act provides specific rights to workers
who have been “denied . . . employment, reemployment,
retention in employment, promotion, or any benefit of
employment” because of their military service. 38 U.S.C.
§ 4311(a); 5 C.F.R. § 1208.2(a). In order to establish that
the Board has jurisdiction over an appeal based on an
alleged USERRA violation, a petitioner must make non-
frivolous allegations that he or she was a member of the
uniformed services, and was denied initial or continued
employment or a benefit of employment, and that military
service was a “substantial or motivating factor” in the
denial. Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013
(Fed. Cir. 2001); see Hayes, 390 F.3d at 1376. The Board
properly found that Mr. Tootle failed to do so.
The administrative law judge’s jurisdictional order
correctly informed Mr. Tootle that his USERRA claim
depended on his making a non-frivolous allegation that
the performance of his military service was “a substantial
or motivating factor” in the agency’s decision to terminate
him. Despite being advised of this requirement and
requesting and receiving additional time to respond to the
Board’s order, Mr. Tootle chose not to make the required
evidence-supported allegation at any time before the
administrative law judge dismissed his USERRA appeal.
Mr. Tootle did eventually allege that the agency discrimi-
nated against him on the basis of his prior military ser-
vice (i.e., a court martial that occurred during his military
service, and subsequent conviction and dishonorable
discharge), but he did not make that allegation until his
petition for review. We see no error in the Board’s deci-
sion not to consider this new allegation made by Mr.
Tootle.
The applicable regulation provides in relevant part
that the Board “may grant a petition . . . for review” when
it is established that “[n]ew and material evidence . . . is
available that, despite due diligence, was not available
TOOTLE v. MSPB 7
when the record closed.” 5 C.F.R. § 1201.115(d); see
Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1328
(Fed. Cir. 2006) (“Both this court and the Board have held
that a party submitting new evidence in connection with a
petition for review must satisfy the burden of showing
that the evidence is material and that it could not have
been obtained earlier with the exercise of due diligence.”).
Mr. Tootle did not meet his burden. As the Board correct-
ly pointed out, Mr. Tootle failed to show that his new
discrimination allegation was in any way based on new
and material evidence: He failed to make any statement
in his petition for review explaining why he could not
have made this allegation earlier, before the record closed.
In these circumstances, the Board committed no error in
declining to consider the new allegation, denying the
petition for review, and affirming the administrative law
judge’s determination that the USERRA claim was defi-
cient for jurisdictional purposes.
The Board likewise committed no error in finding no
jurisdiction on a second ground—that, even if Mr. Tootle
had made the required discrimination allegation, he still
could not pursue a claim under USERRA. Under the
plain language of 38 U.S.C. § 4304(1), “[a] person’s enti-
tlement to the benefits [of USERA] . . . terminates upon
the occurrence of . . . [a] separation of such person from
such uniformed service with a dishonorable or bad con-
duct discharge.” Despite Mr. Tootle’s three honorable
discharges, his one dishonorable discharge takes away
any standing he would otherwise have had to bring his
USERRA claim. Downs v. Dep’t of Veterans Affairs, 110
M.S.P.R. 139, 146-47 (2008); Whisnant v. U.S. Postal
Serv., NY-3443-99-0131-I-1, 1999 WL 803850 (M.S.P.B.
Sept. 29, 1999) (affirming a dismissal for lack of jurisdic-
tion under section 4304 where the appellant’s discharge
from the military was dishonorable).
In response, Mr. Tootle argues that section 4304, in
terminating USERRA rights for those dishonorably
8 TOOTLE v. MSPB
discharged, is unconstitutional on equal protection, due
process, or cruel and unusual punishment grounds. This
argument, even if it had merit, would not undermine the
correctness of the Board’s dismissal, because it has no
bearing on the independent ground that he did not pre-
sent necessary allegations under USERRA. In any event,
we see no merit in the argument. Mr. Tootle has not
pointed to anything in the cited constitutional standards
that prevented Congress from excluding those dishonora-
bly discharged from the special benefits it provided to
those who served in the military and completed such
service honorably. Mr. Tootle was entitled to pursue
remedies available to those not granted the special bene-
fits of USERRA, which is a step that he, in fact, took.
Mr. Tootle’s remaining arguments do not alter our
conclusion. Mr. Tootle contends that certain facts and
documents were not included in the record before the
Board, but most of the identified documents are orders in
a separate appeal that would not alter our holding in the
present appeal. And to the extent that Mr. Tootle con-
tends that the administrative law judge erred by not
providing him with the full 60-day extension that he
requested, we see no abuse of discretion in the provision
of only fourteen days—which, in any event, has no effect
on the dishonorable-discharge bar to Mr. Tootle’s claim.
CONCLUSION
For the foregoing reasons, we affirm the decision of
the Board.
No costs.
AFFIRMED