NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW SEARCY, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2018-1370
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-4324-12-0759-C-1.
______________________
Decided: July 10, 2018
______________________
ANDREW SEARCY, JR., Peachtree City, GA, pro se.
KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Before MOORE, O’MALLEY, and WALLACH, Circuit Judges.
PER CURIAM.
2 SEARCY v. MSPB
Andrew Searcy, Jr. (“Searcy”) appeals from the final
decision of the Merit Systems Protection Board (“the
Board”) dismissing his “Petition for Enforcement and/or
Motion for Corrected Judgement” for lack of jurisdiction.
Searcy v. Dep’t of Agric., No. AT-4324-12-0759-C-1, 2017
MSPB LEXIS 5383 (M.S.P.B. Dec. 26, 2017) (“Decision on
Appeal”). For the reasons discussed below, we affirm.
BACKGROUND
This appeal is the latest in a series of appeals Searcy
has filed relating to his departure from employment with
the Department of Agriculture (“the agency”) in the
1970s. Prior to his employment with the agency, Searcy
served on active military duty for nearly three years.
Searcy v. Merit Sys. Prot. Bd., 486 F. App’x 117, 119 (Fed.
Cir. 2012) (“Searcy I”). Searcy subsequently enrolled full-
time in a post-graduate program and signed an agree-
ment with the agency whereby it would pay his tuition
and salary in exchange for his continued employment for
a specified period or repayment of the training costs.
Id.
In 1977, Searcy left the training program without
completing it and did not return to his position at the
agency.
Id. The agency thereafter terminated his em-
ployment for separation by abandonment and placed a
lien on his retirement account to satisfy the debt he owed
for the tuition payments.
Id.
Almost twenty years after he left his employment,
Searcy sought Equal Employment Opportunity (“EEO”)
counseling, alleging that the agency had discriminated
against him based on race, and that he was coerced into
resigning.
Id. He subsequently filed a complaint with the
U.S. Equal Employment Opportunity Commission
(“EEOC”), which was dismissed as untimely.
Id.
In 2006, Searcy received notice from the Office of Per-
sonnel Management (“OPM”) that his application for
deferred retirement was denied because his retirement
SEARCY v. MSPB 3
contributions had been forfeited to pay his tuition debt.
Id. at 119–20. Searcy filed a second EEO complaint in
2008, alleging that his retirement contributions “were
forfeited due to forced termination on the basis of race.”
Id. at 120. The EEOC administrative judge dismissed
that complaint as untimely.
Id.
In 2009, Searcy submitted a complaint to the U.S.
Department of Labor (“DOL”), alleging that the agency
violated the Uniformed Services Employment and
Reemployment Rights Act (“USERRA”) and the Veterans’
Reemployment Rights Act of 1940 (“VRRA”) by discrimi-
nating against him based on his status as a veteran. He
also filed a complaint with the U.S. Office of Special
Counsel (“OSC”) asserting the same claims. Both DOL
and OSC denied his complaints.
In 2010, Searcy filed an appeal with the Board, which
the Board later docketed as two separate appeals. In one
appeal, Searcy alleged that he was constructively termi-
nated. The Board dismissed that appeal for lack of juris-
diction because it was untimely filed.
Id. at 121. In the
other appeal, Searcy asserted claims under USERRA,
VRRA, and the Veterans Employment Opportunity Act of
1998 (“VEOA”).
Id. In 2011, the Board dismissed the
USERRA and VRRA claims for failure to state a claim
upon which relief could be granted and dismissed the
VEOA claim for lack of jurisdiction.
Id. Searcy appealed
both Board decisions to this court, and we affirmed them
in a single decision.
Id. at 118–19.
Undeterred, in 2012, Searcy filed another appeal with
the Board, alleging that the agency violated his USERRA
rights by terminating him for separation by abandonment
and withdrawing funds from his retirement account.
Searcy v. Dep’t of Agric., 557 F. App’x 975, 977 (Fed. Cir.
2014) (“Searcy II”). He also alleged that the agency
breached the agreement to pay his tuition.
Id. An admin-
istrative judge (“AJ”) dismissed Searcy’s claims as “barred
4 SEARCY v. MSPB
by res judicata based on the decision against him in his
prior USERRA/VRRA appeal.”
Id. The Board affirmed
that decision in August 2013, agreeing with the AJ that
res judicata precluded Searcy’s claims.
Id. Searcy ap-
pealed that decision to this court, and we affirmed the
Board’s dismissal.
Id. at 978.
Searcy subsequently filed a petition for a writ of man-
damus, asking this court to order the Board to reopen and
adjudicate his previously dismissed claims. We denied
the petition, finding that Searcy had no “clear and indis-
putable” right to challenge the Board’s final decisions by
way of mandamus. In re Searcy, 572 F. App’x 986 (Fed.
Cir. 2014).
In December 2017, Searcy filed what he captioned as
a “Petition for Enforcement and/or Motion for Corrected
Judgement” in connection with the Board’s August 2013
decision. Decision on Appeal, 2017 MSPB LEXIS 5383, at
*2. Specifically, Searcy stated that he was seeking en-
forcement of the Board’s order in that case.
Id. In the
alternative, Searcy moved for a “Corrected Judgement,”
seeking to overturn the Board’s res judicata decision.
Id.
at *3.
On December 26, 2017, the AJ issued an initial deci-
sion dismissing Searcy’s petition and motion for lack of
jurisdiction.
Id. at *2–3. The AJ explained that the
Board did not issue an order in his favor in its August
2013 decision, “but instead issued a final order finding it
lacked jurisdiction over the appeal because the doctrine of
res judicata applied.”
Id. at *2. Because the Board did
not issue an order in Searcy’s favor, the AJ found that
there was no order to enforce, and thus the Board lacked
jurisdiction over the petition for enforcement.
Id. at *3.
As to Searcy’s motion for a “Corrected Judgement,” the AJ
explained that she lacked the authority to set aside the
Board’s previously entered final decision, which was
affirmed by this court.
Id. Accordingly, the AJ dismissed
SEARCY v. MSPB 5
Searcy’s petition for enforcement and denied his motion
for corrective judgment.
Id.
Because Searcy did not petition the Board to review
the AJ’s initial decision, it became the final decision of the
Board. Searcy timely appealed to this court, and we have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our jurisdiction to review Board decisions is limited.
By statute, 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 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).
The Board’s jurisdiction “is not plenary, but is limited
to those matters over which it has been granted jurisdic-
tion by law, rule or regulation.” Johnston v. Merit Sys.
Prot. Bd.,
518 F.3d 905, 909 (Fed. Cir. 2008). Whether
the Board has jurisdiction to adjudicate an appeal is a
question of law, which we review de novo.
Id. The peti-
tioner bears the burden of establishing the Board’s juris-
diction by a preponderance of the evidence. Fields v. Dep’t
of Justice,
452 F.3d 1297, 1302 (Fed. Cir. 2006).
We agree with the Board that it lacked jurisdiction
over Searcy’s petition for enforcement. By statute, the
Board has the authority to “order any Federal agency or
employee to comply with any order or decision issued by
the Board . . . and enforce compliance with any such
order.” 5 U.S.C. § 1204(a)(2). Here, Searcy filed a peti-
tion for enforcement pursuant to § 1204(a)(2) in an at-
tempt to overturn the Board’s August 2013 decision
dismissing his appeal on res judicata grounds. But appel-
lants cannot use § 1204(a)(2) to overturn or otherwise
challenge the merits of prior Board decisions. Instead,
§ 1204(a)(2) gives the Board the authority to enforce
6 SEARCY v. MSPB
agency compliance with its final decisions and orders. As
the AJ explained, moreover, because the Board did not
issue an order in Searcy’s favor, there is no order for it to
enforce. Decision on Appeal, 2017 MSPB LEXIS 5383, at
*2–3. Accordingly, the Board correctly determined that it
lacked jurisdiction over Searcy’s petition for enforcement.
On appeal, Searcy cites McCarthy v. Merit Systems
Protection Board,
809 F.3d 1365 (Fed. Cir. 2016), for the
proposition that the Board was required to reopen its
previous decisions. Pet’r Informal Br. 4. Searcy’s reliance
on McCarthy is misplaced, however. In McCarthy, we
held that we have jurisdiction to review a Board decision
on a motion to reopen based on a change in
law. 809 F.3d
at 1373 (declining to address whether “we have jurisdic-
tion to review decisions on motions to reopen that are
premised on other grounds”). Here, Searcy never moved
to reopen his prior appeals and never identified any
intervening change in the law. Because there is no Board
decision on reopening for this court to review, McCarthy is
not applicable.
Even if Searcy had filed a request for reopening with
the Board, this case does not meet the requirements for
reopening. The Board has the authority to reopen or
reconsider a final decision on its own motion “to correct its
own errors or to modify its judgment, decree, or order.”
Golden v. U.S. Postal Serv., 60 M.S.P.R. 268, 272 (1994);
see 5 U.S.C. § 7701(e)(1)(B). The Board’s authority to
reopen an appeal “must be exercised within a ‘reasonable’
amount of time, which the Board has held to be measured
in weeks rather than years.” Golden, 60 M.S.P.R. at 272.
The Board has said reopening “may be appropriate where
there is clear and material legal error resulting in a
conflict between the holding in a decision and controlling
precedent or statute.” Anthony v. Office of Pers. Mgmt.,
70 M.S.P.R. 214, 219 (1996). Reopening may also be
appropriate “in the interests of justice, where the evidence
is of such weight as to warrant a different outcome.”
Id.
SEARCY v. MSPB 7
The Board’s authority to reopen is discretionary and is
generally reserved for “unusual or extraordinary circum-
stances.”
Id.
Here, Searcy has not identified any unusual or ex-
traordinary circumstances that would warrant reopening
or reconsidering any of the Board’s decisions in the prior
appeals. Instead, he simply disagrees with the Board and
maintains that he should have “previously won on the
merits.” 1 Pet’r Informal Br. 3. We have already affirmed
the Board’s 2011 decision on his USERRA appeal (Searcy
I) and the Board’s 2013 decision dismissing Searcy’s
appeal of the same claims based on res judicata (Searcy
II). We also rejected Searcy’s attempt to overturn the
Board’s final decisions via a mandamus petition. The
present appeal is yet another attempt to reverse the
Board’s final decision on his USERRA appeal. That
appeal has been fully litigated, and there is neither a final
Board decision on reopening for this court to review nor
any grounds for reopening. 2
1 Throughout his briefing on appeal, Searcy argues
that USERRA “supersedes” the application of res judica-
ta. Pet’r Informal Br. 4–5, 8–9. To the extent Searcy
suggests that res judicata cannot apply to USERRA
claims, that argument is without merit. See Kimbrough
v. Dep’t of Defense, 287 F. App’x 861, 863 (Fed. Cir. 2008)
(“[W]e agree with the Board that res judicata precluded
Mr. Kimbrough from relitigating allegations of USERRA
discrimination relating to his removal.”); Renville v. Dep’t
of Health & Human Servs., 632 F. App’x 611, 613 (Fed.
Cir. 2015) (“Mr. Renville’s claim under USERRA is also
barred under the doctrine of res judicata.”).
2 On June 7, 2018, Searcy filed what he captioned
as a “Motion for a Finding of Willfulness,” which we
construe as a response to this court’s Notice of Submission
without Oral Argument. Mot. For a Finding of Willful-
8 SEARCY v. MSPB
CONCLUSION
For the foregoing reasons, and because we find
Searcy’s remaining arguments are without merit, we
affirm the Board’s final decision.
AFFIRMED
ness, Searcy v. Merit Sys. Prot. Bd., No. 18-1370 (Fed. Cir.
June 7, 2018), ECF No. 38. We have considered Searcy’s
additional arguments therein and find them unpersua-
sive.
