Burroughs v. Department of the Army ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MILO D. BURROUGHS,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
______________________
2012-3195
______________________
Appeal of the Merit Systems Protection Board in No.
SF3330120255-I-1.
______________________
Decided: April 5, 2013
______________________
MILO D. BURROUGHS, of Yelm, Washington, pro se.
VINCENT D. PHILLIPS, Trial Attorney, Commercial Lit-
igation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Principal Deputy
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and STEVEN J. GILLINGHAM, Assistant Director.
______________________
2 MILO BURROUGHS v. ARMY
Before PROST, REYNA, and WALLACH, Circuit Judges.
PER CURIAM.
Milo D. Burroughs, a military veteran, applied for a
position as an aerospace engineer in January 2007. While
designated as an alternate by the selecting official, Mr.
Burroughs was not selected for the job. He appealed his
non-selection to the Merit Systems Protection Board
(“Board”) in a prior action seeking corrective action on the
grounds that his non-selection resulted from discrimina-
tion on the basis of his military service. Prior to the
conclusion of that case, he filed a second Board appeal,
also alleging discrimination based on alleged retaliation,
which he believed occurred because he had filed numerous
previous appeals from other, unrelated non-selections.
The appeal currently pending before this court arises from
Mr. Burroughs’s second Board appeal. We affirm the
Board’s dismissal of Mr. Burroughs’s second appeal.
BACKGROUND
On January 18, 2007, the Army issued a vacancy an-
nouncement for the position of Aerospace Engineer at
Fort Lewis, Washington. Burroughs v. Dep’t of the Army,
No. SF-3330-12-0255-I-1, 2012 MSPB LEXIS 1911, at *1
(M.S.P.B. Apr. 4, 2012) (“Board Decision”). Mr. Bur-
roughs timely applied and was designated as “Second
Alternate”; because there was only one position to be
filled, Mr. Burroughs was not chosen. Id. at *2.
Mr. Burroughs filed his first appeal with the Board
based on his non-selection for the Fort Lewis job on Octo-
ber 24, 2011. Burroughs v. Dep’t of the Army, No. SF-
4324-12-0050-I-1, 2012 MSPB LEXIS 487 (M.S.P.B. Jan.
26, 2012). In that case, Mr. Burroughs asserted violations
of the Uniformed Services Employment and Reemploy-
ment Rights Act, 38 U.S.C. § 4311 (“USERRA”), arguing
that he had been discriminated against based upon his
military service, id. at *3; the administrative judge found
MILO BURROUGHS v. ARMY 3
that Mr. Burroughs presented no evidence of discrimina-
tion whereas the selecting official provided a declaration
stating that his decision was not motivated by the appli-
cant’s military status, id. at *6. The full Board then
denied Mr. Burroughs’s petition for review, and Mr.
Burroughs did not appeal. Burroughs v. Dep’t of the Army,
118 M.S.P.R. 432 (M.S.P.B. 2012).
Immediately after the initial decision from the first
appeal was issued, Mr. Burroughs filed a second Board
appeal on January 30, 2012, challenging the same non-
selection. Board Decision at *2-3. In this appeal, Mr.
Burroughs originally asserted a Veterans Employment
Opportunities Act of 1998 (“VEOA”) claim, which was
later withdrawn. Id. at *3-4. Mr. Burroughs then re-
quested “a declaratory ruling” regarding alleged Veterans’
Preference Act of 1944 (“VPA”) claims and also sought
relief for his non-selection under a separate USERRA
provision than asserted in his previous Board appeal. Id.
at *7-10.
On April 4, 2012, the Board issued its decision deny-
ing Mr. Burroughs’s claim for corrective action under
USERRA, finding that Mr. Burroughs had failed to sub-
mit any evidence to support his claim of discriminatory
animus and finding the sworn declaration of the selecting
official demonstrated that it was more likely true than not
that Mr. Burroughs’s veteran status was not a motivating
factor in his non-selection. Id. at *8-10. Additionally, the
Board determined that it did not have jurisdiction to
address Mr. Burroughs VEOA and VPA claims. Id. at *4-
6.
Mr. Burroughs petitioned the full Board for review of
its decision, and the Board denied his petition, finding
that he had failed to make a showing of retaliation based
on protected USERRA activity. Burroughs v. Dep’t of the
Army, No. SF-3330-12-0255-I-1, 2012 MSPB LEXIS 4797
4 MILO BURROUGHS v. ARMY
(M.S.P.B., Aug. 21, 2012). Thus, the full Board adopted
the Initial Decision without substantive modifications.
Mr. Burroughs filed a timely appeal; we have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
This court must uphold a decision of the Board unless
it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). Additionally, whether the
Board has jurisdiction over a claim is a question of law
this court reviews without deference. Butler v. Soc. Sec.
Admin., 331 F.3d 1368, 1371-72 (Fed. Cir. 2003).
An employee making a USERRA discrimination claim
bears the initial burden of showing, by a preponderance of
the evidence, that his military service was a substantial
motivating factor in his adverse employment action.
Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed.
Cir. 2001) (internal quotations omitted). “If this require-
ment is met, the employer then has the opportunity to
come forward with evidence to show, by a preponderance
of the evidence, that the employer would have taken the
adverse action anyway, for a valid reason.” Id.
In this case, Mr. Burroughs failed to meet his initial
burden; as noted by the administrative judge, Mr. Bur-
roughs submitted no evidence of discrimination nor does
he submit any such evidence on appeal. Board Decision at
*8-10; see generally Pet. Br. and Pet. Reply Br. 1 The
1 Mr. Burroughs’s speculation regarding a form let-
ter he received informing him of his non-selection does not
constitute evidence of discrimination. See Pet. Reply Br.
at Tab 2. Additionally, Mr. Burroughs’s argument on
appeal that the dismissal was improper because the
MILO BURROUGHS v. ARMY 5
Army, however, offered a sworn declaration by the select-
ing authority who stated he “did not discriminate against
[the appellant] based on his veterans status or his exer-
cise of any rights he may have under veterans statutes.”
Board Decision at *9. The selecting authority also stated
that he not only did not consider military status as a
negative factor but, rather, considered it a positive factor;
Mr. Burroughs was not chosen because, ultimately, the
selecting authority considered another service member to
be more qualified. Id. at *8-10.
Additionally, the Board properly determined that it
did not have jurisdiction over the VEOA claim as the
claim was withdrawn. Board Decision at *4-6. Finally,
the Board correctly determined that it did not have juris-
diction over Mr. Burroughs’s claim trying to assert rights
under the VPA. Id. at *6. The VPA defines the various
veterans’ preference rights and who is entitled to them.
Patterson v. Dep’t of Int., 424 F.3d 1151, 1155 (Fed. Cir.
2005). The VPA does not, however, provide the Board
with authority to hear claims alleging violations of veter-
ans’ preference. Noble v. Tennessee Valley Auth., 892 F.2d
1013, 1015 (Fed. Cir. 1999). It is the VEOA not the VPA
that “establishes vindication rights for veterans who
consider themselves the victims of violations of their
preference rights.” Lapuh v. Merit Sys. Pro. Bd., 284 F.3d
1277, 1279 (Fed. Cir. 2002).
administrative judge afforded too much weight to the
selecting official’s declaration is beside the mark. Pet. Br.
at 3.
6 MILO BURROUGHS v. ARMY
CONCLUSION
Because substantial evidence supports the Board’s
denial of Mr. Burroughs’s USERRA claim and because the
Board correctly determined it had no jurisdiction over Mr.
Burroughs’s VPA and VEOA claims, we AFFIRM.
AFFIRMED