Milo D. Burroughs v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MILO D. BURROUGHS, DOCKET NUMBER
Appellant, DA-4324-12-0105-B-1
v.
DEPARTMENT OF THE ARMY, DATE: January 23, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Milo D. Burroughs, Yelm, Washington, pro se.
Kenneth M. Muir, Esquire, Corpus Christi, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which denied his request for corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.
§§ 4301-4333) (USERRA). Generally, we grant petitions such as this one only
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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when: the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 In November 2011, the appellant filed an appeal claiming that the agency
discriminated and retaliated against him in violation of USERRA when it failed to
select him for a Lead Aerospace Engineer position. Burroughs v. Department of
the Army, 120 M.S.P.R. 392, ¶¶ 2, 6-7 (2013). The administrative judge denied
the appellant’s request for corrective action, finding that he failed to show by
preponderant evidence that his uniformed service was a motivating factor in the
nonselection. Id., ¶ 3. In an Opinion and Order dated December 5, 2013, the
Board affirmed the administrative judge’s finding that he failed to establish his
USERRA discrimination claim. Id., ¶ 6. The Board remanded the appeal,
however, for consideration of the appellant’s USERRA retaliation claim, which it
found the administrative judge did not address. Id., ¶¶ 7-8.
¶3 After affording the parties an opportunity to submit evidence and argument
concerning the retaliation claim, Remand Appeal File (RAF), Tab 16, the
administrative judge issued a remand initial decision based on the written record
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denying the appellant’s request for corrective action, RAF, Tab 18, Remand
Initial Decision (RID). 2 Specifically, the administrative judge found that the
appellant did not show that his protected activity was a substantial or motivating
factor in the nonselection. RID at 3-4.
¶4 The appellant has filed a petition for review. Remand Petition for Review
(RPFR) File, Tab 1. The agency has filed a response in opposition, RPFR File,
Tab 3, to which the appellant has replied, RPFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant argues that he submitted an affidavit below that
proved his USERRA retaliation claim and that, because the agency failed to
submit any evidence to rebut his sworn assertions, the administrative judge erred
in finding that he failed to prove his claim by preponderant evidence. RPFR File,
Tab 1 at 2.
¶6 As the administrative judge properly set forth, if an appellant engages in
one or more forms of protected activity set forth in 38 U.S.C. § 4311(b), an
agency violates that section if the appellant’s protected activity is a substantial or
motivating factor in the agency’s action, unless the agency can prove that it
would have taken the action in the absence of the appellant’s protected activity.
RID at 1-2; see Burroughs, 120 M.S.P.R. 392, ¶ 7. In his affidavit, the appellant
restated the requirements to establish a USERRA retaliation claim as set forth by
the administrative judge and repeatedly asserted that he had never been
recognized as a “person” under the law. RAF, Tab 13. Contrary to his
allegations, however, the appellant failed to provide any explanation or evidence
to support a finding that the agency’s failure to select him for the Lead Aerospace
Engineer position was a violation of section 4311(b). RID at 3; RAF, Tab 13.
Under these circumstances, the administrative judge properly found that the
appellant failed to meet his burden of showing that his protected activity was a
2
The appellant withdrew his initial request for a hearing. RAF, Tab 16.
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substantial or motivating factor in his nonselection. RID at 3-4. Consequently,
the agency’s burden to show that it would not have selected the appellant for the
position notwithstanding his protected activity was never triggered.
Burroughs, 120 M.S.P.R. 392, ¶ 7.
¶7 The appellant also argues that the administrative judge failed to address his
whistleblower retaliation claim on remand. RPFR File, Tab 1 at 2-3. However,
the Board noted in its Opinion and Order that any such claim was precluded in the
present appeal because the appellant did not object to the administrative judge’s
ruling that the only issue under consideration in the appeal was his USERRA
claim. Burroughs, 120 M.S.P.R. 392, ¶ 9. Therefore, if the appellant wishes to
pursue a claim of whistleblower retaliation concerning his nonselection—as
opposed to a retaliation claim under USERRA, which is at issue in the present
appeal—he may do so by filing a new appeal with the regional office. Id.
¶8 The appellant also appears to allege that the agency violated his veterans’
preference rights when it failed to select him for the Lead Aerospace Engineer
position. RPFR File, Tab 1 at 4. As the Board previously found, however, the
only issue for consideration in the present appeal is the appellant’s USERRA
claim. Burroughs, 120 M.S.P.R. 392, ¶ 9. Therefore, to the extent the appellant
wishes to pursue a claim concerning a violation of his veterans’ preference rights
in connection with this nonselection, he may do so by filing a new appeal with the
regional office. See id.
¶9 Lastly, the appellant attaches alleged new evidence in an apparent effort to
show that the agency’s failure to select him for the Lead Aerospace Engineer
position was criminal. RPFR File, Tab 1 at 6-42. The alleged new evidence,
however, is contained in the record below. MSPB Docket No. DA-4323-12-0105-
I-1, Initial Appeal File, Tab 43. Accordingly, it is not new and we need not
consider it. See Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
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Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.