Holmes v. Department of Justice , 498 F. App'x 993 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT HOLMES, JR.,
Petitioner,
v.
DEPARTMENT OF JUSTICE,
Respondent.
______________________
2012-3191
______________________
Appeal from the Merit Systems Protection Board in
case no. DA4324110661-I-1.
______________________
Decided: January 11, 2013
______________________
ROBERT HOLMES JR., of Buena Vista, Georgia, pro se.
DAVID A. LEVITT, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and
FRANKLIN E. WHITE, JR., Assistant Director.
______________________
2 ROBERT HOLMES, JR. v. DOJ
Before RADER, Chief Judge, DYK, and REYNA, Circuit
Judges.
PER CURIAM.
Robert Holmes, Jr. seeks review of a final decision of
the Merit Systems Protection Board (“Board”), which
dismissed his appeal for lack of jurisdiction. In the dis-
missed appeal, Mr. Holmes alleged that the Department
of Justice (“DOJ”) violated his rights under the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”). After an administrative judge re-
viewed and considered the written documents and state-
ments in the record, the full Board agreed that Mr.
Holmes failed to allege that the DOJ discriminated
against him on the basis of his prior military service when
the DOJ advised the Office of Workers’ Compensation
Programs (“Office of Workers Compensation”) to deny his
claim for job-related disability compensation. 1 Robert J.
Holmes, Jr. v. Dep’t of Justice, No. DA-4324-11-0661-I-1
slip op. at 3–4 (M.S.P.B. July 25, 2012). For the reasons
discussed below, we affirm.
BACKGROUND
Mr. Holmes is a veteran who served overseas in the
Gulf War. Mr. Holmes states that he suffered from Post-
Traumatic Stress Disorder (“PTSD”) following that ser-
vice. He worked for the DOJ as an Accounting Technician
until his removal on September 20, 2000 for an inability
to perform required duties. Before his removal, in June
1 The Office of Workers’ Compensation Pro-
grams, part of the Department of Labor, administers four
major disability compensation programs which provide
wage replacement benefits, medical treatment, vocational
rehabilitation and other benefits to certain workers or
their dependents who experience work-related injury or
occupational disease.
ROBERT HOLMES, JR. v. DOJ 3
2000, he requested occupational disability compensation
for an injury allegedly caused by job-related stress.
Specifically, he stated that his job exacerbated his PTSD
and he sought continuation of pay (“COP”) for forty-five
days while he gathered additional evidence of the alleged
medical disability. The Office of Workers Compensation
denied the COP request after the DOJ provided advice
that the PTSD-related injuries were not a result of Mr.
Holmes’s employment.
Some eleven years later, on September 11, 2011, Mr.
Holmes filed an appeal with the Merit Systems Protection
Board. The USERRA claim moved forward because there
is no statute of limitations. Erickson v. U.S. Postal Ser-
vice, 636 F.3d 1353, 1358 (Fed. Cir. 2011). The appeal
sought review of the DOJ’s advisory opinion recommend-
ing that the Office of Workers Compensation reject the
claim for COP based on job-related stress. The adminis-
trative judge dismissed the appeal for lack of jurisdiction
because an injury arising out of military service is not
cognizable under USERRA. A9 (citing Hammond v. Dep’t
of Veterans Affairs, 98 M.S.P.R. 359, ¶ 8 (2005)). The
decision clarified as a matter of law that Mr. Holmes’s
claim was “not based on the appellant’s status as a veter-
an or his performance of, or obligation to perform, mili-
tary service.” A10. The administrative judge found that
the DOJ’s action was not a result of Mr. Holmes’s prior
uniformed service, but rather, the fact that the injury
occurred outside of his work with the DOJ. A9. The full
Board affirmed the determination. Mr. Holmes timely
appealed, and we have jurisdiction to review the Board’s
final decision under 38 U.S.C. § 4324, and 28 U.S.C. §
1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s determination that it lacked
jurisdiction is a question of law that we consider de novo.
Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed.
4 ROBERT HOLMES, JR. v. DOJ
Cir. 2011). When reviewing the underlying factual find-
ings, we must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c); see also Hayes v. Dep’t of Navy, 727 F.2d
1535, 1537 (Fed. Cir. 1984).
DISCUSSION
According to the USERRA, discrimination is prohibit-
ed against:
[a] person who is a member of, applies to be a
member of, performs, has performed, applies to
perform, or has an obligation to perform service in
a uniformed service shall not be denied . . . any
benefit of employment by an employer on the ba-
sis of that membership, application for member-
ship, performance of service, application for
service, or obligation.
38 U.S.C. § 4311(a). The petitioner is required to prove
the performance of military service was “a motivating
factor” in the employer’s discriminatory action. 38 U.S.C.
§ 4311(c); see also Sheehan v. Dep’t of Navy, 240 F.3d
1009, 1014 (Fed. Cir. 2001) (“[I]n USERRA actions there
must be an initial showing by the employee that military
status was at least a motivating or substantial factor in
the agency action.”).
On appeal Mr. Holmes argues that his PTSD was a
motivating factor in the DOJ’s recommendation to deny
his request for forty-five days of COP, but the record is
devoid of any well-pled allegation or evidentiary showing
that the recommendation to deny the COP request was
motivated by Mr. Holmes’s membership, application for
membership, or performance of military service. See 38
U.S.C. § 4311(a). Instead, his appeal was based on allega-
ROBERT HOLMES, JR. v. DOJ 5
tions of injuries he sustained due to service in the Gulf
War and not on discrimination due to his military status,
as required under the statute.
A PTSD injury alone is not enough to raise a cogniza-
ble discrimination claim under USERRA. As the admin-
istrative judge correctly explained, “[T]he fact that an
appellant’s injury occurred during his military service
does not transform his allegation into a USERRA claim.”
A9 (internal citations omitted). Here, Mr. Holmes’s PTSD
injury developed while he served on active duty, but it
preceded his DOJ employment and the recommendation
to deny COP would have been the same regardless of
whether the injury arose from civilian or military activi-
ties. See Daniels v. U. S. Postal Service, 25 F. App’x. 970,
972 (Fed. Cir. Dec. 10, 2001); see also McBride v. U.S.
Postal Service, 78 M.S.P.R. 411, 414–15 (1998) (noting
that 38 U.S.C. § 4301(a)(3) mentions “service” and not
injuries or disabilities arising from that service). Because
the facts underlying Mr. Holmes’s claim are not tied to
any cognizable discrimination, there was no valid
USERRA claim. We have considered Mr. Holmes’s re-
maining arguments and find that they provide no basis
for relief. For the foregoing reasons, the decision of the
Board is hereby
AFFIRMED
COSTS
No costs.