Brasch v. MSPB , 664 F. App'x 915 ( 2016 )

Note: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STANLEY C. BRASCH,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2016-1923, 2015-1925
______________________
Petitions for review of the Merit Systems Protection
Board in Nos. CH-4324-15-0487-I-1, CH-4324-15-0390-I-1.
______________________
Decided: November 3, 2016
______________________
STANLEY C. BRASCH, St. Louis, MO, pro se.
LINDSEY SCHRECKENGOST, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
PER CURIAM.
2 BRASCH v. MSPB
Stanley C. Brasch petitions for review of two final de-
cisions of the Merit Systems Protection Board (“the
Board”) (Nos. CH-4324-15-0487-I-1 and CH-4324-15-0390-
I-1). Mr. Brasch argues that the Board improperly dis-
missed his appeals under the Uniformed Services Em-
ployment and Reemployment Rights Act of 1994
(“USERRA”) for lack of jurisdiction. We affirm.
BACKGROUND
Mr. Brasch is a Computer Specialist with the De-
partment of Transportation, Federal Aviation Admin-
istration’s (“the Agency”) Air Traffic Organization
Technology office in St. Louis, Missouri. On April 13,
2015 and June 2, 2015, Mr. Brasch filed two initial ap-
peals of agency personnel actions with the Board, alleging
that the Agency had violated USERRA. Specifically, Mr.
Brasch alleged that the Agency had (1) denied him em-
ployment benefits, (2) discriminated against him for
engaging in protected whistleblower activity, and
(3) subjected him to harassment, retaliation, discrimina-
tion, and a hostile work environment.
On April 14, 2015 and June 4, 2015, the Board Ad-
ministrative Judge (“AJ”) issued orders on USERRA
Jurisdiction and Notice of Proof Requirements. The
orders described the legal requirements to establish
jurisdiction in a USERRA appeal and explained that
conclusory, vague, or unsupported allegations were insuf-
ficient to meet this standard. In response, Mr. Brasch
provided proof of his military service, listed his prior
Board appeals alleging the Agency committed USERRA
violations, and reiterated the Agency actions listed in his
appeals.
On November 16, 2015 and November 19, 2015, the
AJ dismissed both of Mr. Brasch’s appeals for lack of
jurisdiction, stating that Mr. Brasch had failed to make a
non-frivolous allegation that his military status was at
least a motivating factor in the Agency’s alleged actions
BRASCH v. MSPB 3
against him. On February 26, 2015, the Board denied Mr.
Brasch’s petition for review and affirmed the Initial
Decisions. Mr. Brasch appeals these decisions; we have
jurisdiction over Mr. Brasch’s appeals pursuant to 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
DISCUSSION
As stated in 5 U.S.C. § 7703(c), we must affirm a deci-
sion of the Board unless we find it to be: (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. Forest v.
Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995).
Whether the Board has jurisdiction to adjudicate a par-
ticular appeal is a question of law that this court reviews
de novo. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). The petitioner bears the burden to
show that the Board may exercise jurisdiction in a case.
Prewitt v. Merit Sys. Prot. Bd., 133 F.3d 885, 886 (Fed.
Cir. 1998).
The Board has jurisdiction over claims made by feder-
al employees subject to the rights and protections of
USERRA. 38 U.S.C. §§ 4304(1), 4324(b); 5 C.F.R.
§ 1208.2(a). Mr. Brasch alleges the Agency committed
USERRA violations that fall under both §§ 4311(a) and
(b). Under § 4311(a), USERRA provides specific rights to
covered employees who have been “denied . . . employ-
ment, reemployment, retention in employment, promo-
tion, or any benefit of employment” due to their military
service. 38 U.S.C. § 4311(a); 5 C.F.R § 1208.2(a). In
§ 4311(b), USERRA prohibits employment discrimination
against any person who “(1) has taken an action to enforce
a protection afforded any person under this chapter,
(2) has testified or otherwise made a statement in or in
connection with any proceeding under this chapter,
(3) has assisted or otherwise participated in an investiga-
4 BRASCH v. MSPB
tion under this chapter, or (4) has exercised a right pro-
vided for in this chapter.” 38 U.S.C. § 4311(b).
To establish that the Board has jurisdiction over an
alleged USERRA violation under § 4311(a), a petitioner
must make non-frivolous allegations that (1) he or she
was a member of the uniformed services, (2) the agency
denied initial or continued employment or a benefit of
employment, and (3) 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). To establish
that the Board has jurisdiction over the reprisal-type
USERRA violation under § 4311(b), a petition must make
non-frivolous allegations that (1) the petitioner took
action to enforce a protection afforded to any person under
Chapter 43 of Title 38 of the U.S. Code, and (2) the peti-
tioner’s action was a “substantial or motivating factor” in
the agency discrimination or retaliation. Id. Under
either cause of action, the Board has jurisdiction over the
appeal only if the petitioner alleges facts that, if proven,
would establish a violation of USERRA. See id. Conclu-
sory, vague, or unsupported allegations are not sufficient
to meet this standard.
Between his two appeals, Mr. Brasch alleges the
Agency committed nine separate § 4311(a) USERRA
violations by: (1) denying five requests to speak with
management in April and May 2015 concerning employ-
ment issues; (2) denying his badge access to the St. Louis
Tower, which provided him computer support; (3) failing
to respond to his January 2015 annual leave restoration
request; (4) failing to speedily process his fiscal year 2014
local travel; (5) denying his request to have his hard drive
restored after it was infected by a computer virus;
(6) denying him computer administrative access rights, in
violation of Agency policies; (7) denying his request to
attend the Agency’s Program for Emerging Leaders;
(8) denying his request for administrative leave to assist
the U.S. Department of Defense at a U.S. Chamber of
BRASCH v. MSPB 5
Commerce Foundation, Hiring Our Heroes event; and
(9) requiring that, in the future, he would have to submit
a daily activity report.
Mr. Brasch has failed to establish that the Board has
jurisdiction over his § 4311(a) appeals. Mr. Brasch’s
allegations under § 4311(a) are all of a similar type—he
alleges that the Agency denied him certain benefits
provided to non-military Agency personnel because of his
military service. Mr. Brasch submitted sufficient docu-
mentation of his military service for the AJ to find that
Mr. Brasch had been a member of the uniformed services
and thus that the requirements of the first prong of
§ 4311(a) were fulfilled. But prongs two and three of
§ 4311(a) require Mr. Brasch to also show that the Agency
denied him a benefit of employment, and that prior mili-
tary service was a “substantial or motivating factor” in
the Agency’s denial. While it is not clear whether the
Board determined in its decision that the benefits Mr.
Brasch claimed were, in fact, benefits of employment, it is
clear that Mr. Brasch has not provided any factual basis
to link the Agency’s denial of the alleged benefits to his
prior military service. The essence of a meritorious
§ 4311(a) USERRA claim is that a covered individual was
denied a benefit because he or she served in the military.
We agree with the Board’s determination that Mr.
Brasch has “failed to allege facts, which, if proven, could
establish that his military status or his USERRA activity
was at least a motivating factor in the cited agency ac-
tions.” Brasch v. Dept. of Transp., CH-4324-15-0390-I-1,
Final Order at 4 (M.S.P.B. Feb. 26, 2016). Because Mr.
Brasch failed to make non-frivolous allegations that the
Agency denied him benefits based on his prior military
service, we affirm the Board’s decisions dismissing his
§ 4311(a) claims for lack of jurisdiction.
We also find Mr. Brasch has failed to establish the
Board’s jurisdiction over his reprisal-type § 4311(b)
6 BRASCH v. MSPB
claims. Mr. Brasch alleges that the Agency violated
§ 4311(b) by retaliating against him for raising multiple
USERRA claims to the Board. As with his § 4311(a)
claims, Mr. Brasch’s § 4311(b) claims are wholly concluso-
ry. We agree that Mr. Brasch has failed to allege facts
which, if proven, may establish that his USERRA activity
was at least a motivating factor in the Agency’s actions.
Because Mr. Brasch has not alleged an adequate causal
link between the alleged Agency reprisal and Mr. Brasch’s
multiple USERRA claims, we find that the Board properly
affirmed the AJ’s Initial Decisions dismissing these
§ 4311(b) appeals for lack of jurisdiction.
CONCLUSION
We have considered Mr. Brasch’s remaining argu-
ments and conclude that they are without merit. For the
foregoing reasons, we affirm the Board’s decisions.
AFFIRMED