Searcy v. Department of Agriculture , 557 F. App'x 975 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANDREW SEARCY, JR.,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
______________________
2013-3175
______________________
Petition for review of the Merit Systems Protection
Board in No. AT4324120759-I-1.
______________________
Decided: February 21, 2014
______________________
ANDREW SEARCY, JR., of Peachtree City, Georgia, pro
se.
JANE C. DEMPSEY, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and STEVEN J.
GILLINGHAM, Assistant Director.
______________________
2 SEARCY v. AGRICULTURE
Before DYK, MOORE, and WALLACH, Circuit Judges.
PER CURIAM.
Andrew Searcy, Jr. appeals from the final order of the
Merit Systems Protection Board (Board) dismissing his
appeal as barred by res judicata. Searcy v. Dep’t of Agric.,
No. AT-4324-12-0759-I-1 (M.S.P.B. Aug. 5, 2013) (Final
Order). For the reasons discussed below, we affirm.
BACKGROUND
Mr. Searcy worked for the United States Department
of Agriculture (USDA) after serving on active military
duty for nearly three years. He subsequently enrolled
full-time in a post-graduate training program. Under the
Government Employees Training Act, USDA agreed to
pay Mr. Searcy’s tuition in exchange for his employment
with USDA after the training program or repayment of
the training costs. However, Mr. Searcy left school with-
out completing his program and did not return to his
position at USDA. In 1977, USDA terminated him for
separation by abandonment. USDA also placed a lien on
Mr. Searcy’s retirement account for the debt he owed from
the training program.
Prior to the case before us, Mr. Searcy filed two other
Board appeals. In the first, Mr. Searcy alleged that he
was constructively terminated. The Board dismissed Mr.
Searcy’s appeal for lack of jurisdiction because it was
untimely filed, and we affirmed. Searcy v. Merit Sys.
Prot. Bd., 486 F. App’x 117, 121–23 (Fed. Cir. 2012). In
the second, Mr. Searcy alleged that USDA’s termination
based on abandonment and its withdrawal of funds from
his retirement account violated the Uniformed Services
Employment and Reemployment Rights Act of 1994, 38
U.S.C. §§ 4301-35 (2006) (USERRA), and the Veterans’
Reemployment Rights Act of 1940 (VRRA). The Board
dismissed Mr. Searcy’s USERRA and VRRA claims for
SEARCY v. AGRICULTURE 3
failure to state a claim upon which relief can be granted.
We affirmed, explaining that USERRA’s substantive law
is not retroactive and thus does not apply to USDA’s pre-
1994 acts that were the subject of Mr. Searcy’s claims. Id.
at 121, 123–24. We also explained that Mr. Searcy was
not eligible for protection under the VRRA because he was
not an active reservist at the time USDA terminated him
and withdrew funds from his retirement account. Id. at
124.
Returning to the Board for the third time, Mr. Searcy
alleged that USDA violated USERRA by terminating him
for separation by abandonment and withdrawing funds
from his retirement account. He also alleged that USDA
breached the agreement to pay his tuition. Relying on
Hernandez, Mr. Searcy contended that these actions
violated his rights under the Veterans’ Preference Act of
1944 (VPA) and that the Board had the authority to
adjudicate his USERRA § 4324(c)(1) claim because the
VPA was in effect at the time of USDA’s offending acts.
See Hernandez v. Dep’t of Air Force, 498 F.3d 1328, 1331
(Fed. Cir. 2007) (holding that “where a governmental
action violated a veterans’ protection statute in effect at
the time the conduct occurred, the board has jurisdiction
under USERRA [38 U.S.C. § 4324(c)(1)] to adjudicate
claims arising from that past violation,” even if it occurred
before 1994).
The Board affirmed the administrative judge’s (AJ)
initial decision dismissing Mr. Searcy’s claims as barred
by res judicata. Final Order at 3–4. The Board recog-
nized that it had jurisdiction to hear Mr. Searcy’s
USERRA claim alleging a violation of VPA because VPA
was in effect at the time of the alleged acts. Id. at 3.
However, the Board found that Mr. Searcy’s claim was
barred by res judicata based on the decision against him
in his prior USERRA/VRRA appeal. Id. at 4. Therefore,
the Board dismissed his appeal. Id. at 2.
4 SEARCY v. AGRICULTURE
Mr. Searcy appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9) (2012).
DISCUSSION
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) (2012). Res judicata applies when (1)
the parties are identical or in privity, (2) there has been
an earlier final judgment on the merits of the first claim,
and (3) the second claim is based on the same set of
transactional facts as the first. Ammex, Inc. v. United
States, 334 F.3d 1052, 1055 (Fed. Cir. 2003).
On appeal, Mr. Searcy argues that res judicata does
not apply because the Director of the Office of Personnel
Management (OPM) did not participate in the prior
appeal. He contends that the Board was required by 5
U.S.C. § 7701(d)(2) to provide notice of his prior appeal to
the Director, who has a right to intervene. Mr. Searcy
contends that, because the Board did not provide such
notice, a necessary party was not joined to the prior
appeal and thus res judicata cannot apply.
Mr. Searcy also argues that res judicata does not ap-
ply because the AJ in the prior appeal concealed from him
that the Board had jurisdiction to adjudicate his VPA
claim under § 4324(c)(1) of USERRA. Mr. Searcy argues
that he could have brought the claims in his prior appeal
under § 4324(c)(1), but that the AJ “failed to . . . inform,
concealed, misrepresented, and/or . . . otherwise misled”
him about the prerequisites of bringing a claim under
§ 4324(c)(1). He asserts that res judicata should not apply
because these alleged misrepresentations prevented him
from being able to bring a claim under § 4324(c)(1) in the
SEARCY v. AGRICULTURE 5
prior appeal, thus denying him a valid final judgment on
the merits.
We agree with the Board that Mr. Searcy’s appeal is
precluded by res judicata. The parties in Mr. Searcy’s
prior and current appeals—Mr. Searcy and USDA—are
identical. The prior appeal proceeded to a final judgment
on the merits when we upheld the Board’s decision to
dismiss Mr. Searcy’s USERRA and VRRA claims for
failure to state a claim. See Spruill v. Merit Sys. Prot.
Bd., 978 F.2d 679, 686 (Fed. Cir. 1992) (dismissal for
failure to state a claim is a final decision on the merits).
Finally, the prior and current appeals involve the same
set of transactional facts—USDA’s removal of Mr. Searcy
by reason of abandonment and its withdrawal of funds
from Mr. Searcy’s retirement account. We find no error
with the AJ’s determination that the facts surrounding
Mr. Searcy’s allegations of breach of the tuition payment
agreement were factually “intertwined” with USDA’s
removal by abandonment.
Mr. Searcy’s arguments do not preclude the applica-
tion of res judicata. First, res judicata applies despite the
Board’s failure to notify the Director of OPM. Section
7701(d)(2) only requires the Board to notify the Director
“whenever the interpretation of any civil service law, rule,
or regulation under the jurisdiction of [OPM] is at issue.”
5 U.S.C. § 7701(d)(2). Mr. Searcy’s prior appeals raised
no such issues. Thus, the Board was not required to
notify the Director. 1
1 In its brief, the government asserts that Mr.
Searcy’s claim that the Director must be joined is “base-
less” and “inapplicable” to the current appeal. On De-
cember 5, 2013, Mr. Searcy filed a “Motion for Judgment”
alleging that the government’s characterization of his
6 SEARCY v. AGRICULTURE
Second, the AJ’s failure to instruct Mr. Searcy that he
could have pursued his prior appeal under § 4324(c)(1)
does not preclude the application of res judicata. 2 The AJ
was not required to inform Mr. Searcy of other legal
theories upon which he may have relied to pursue his
claims. Moreover, nothing in the record supports Mr.
Searcy’s allegations that the AJ made any misrepresenta-
tions to Mr. Searcy about the scope of the Board’s jurisdic-
tion.
CONCLUSION
We have considered the remainder of Mr. Searcy’s ar-
guments and do not find them persuasive. We affirm the
Board’s dismissal of Mr. Searcy’s appeal.
AFFIRMED
position amounted to a fraud upon the court. That motion
is denied.
2 Mr. Searcy also argues that res judicata should
not apply because his prior appeal was dismissed for lack
of jurisdiction, which is not a final judgment. While Mr.
Searcy is correct that his prior constructive termination
appeal was dismissed for lack of jurisdiction, the AJ and
the Board relied on his prior USERRA/VRRA appeal for
res judicata purposes. That appeal was dismissed for
failure to state a claim and is a final judgment for res
judicata purposes.