Becker v. Department of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
RICHARD A. BECKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2012-3008
__________________________
Petition for review of the Merit Systems Protection
Board in case no. NY4324110071-I-1.
__________________________
Decided: April 4, 2012
__________________________
RICHARD A. BECKER, of Coram, New York, pro se.
AMANDA L. TANTUM, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and BRIAN M. SIMKIN,
Assistant Director.
__________________________
2 BECKER v. VA
Before RADER, Chief Judge, LINN and WALLACH, Cir-
cuit Judges.
PER CURIAM.
Richard A. Becker (“Becker”) appeals from a final de-
cision of the Merit Systems Protection Board (“MSPB”)
denying his claim under the Uniformed Services Em-
ployment and Reemployment Rights Act of 1994
(“USERRA”). Because substantial evidence supports the
MSPB’s decision, this court affirms.
BACKGROUND
Becker, a veteran, is a Nursing Assistant, GS-5, with
the Department of Veterans Affairs (“VA”). He applied for
the position of Financial Account Technician, GS-5/6, with
the VA, but a non-veteran was selected for the position.
Becker appealed the VA’s employment decision to the
MSPB alleging that he was more qualified than the
selected candidate and that VA management is anti-
veteran and had violated his rights under USERRA.
At the start of proceedings before the MSPB, the ad-
ministrative judge requested the VA to furnish several
pieces of information relevant to the VA’s non-selection of
Becker. The administrative judge also told Becker that
he needed to show by a preponderance of the evidence
that his military service was a motivating or substantial
factor in the VA’s adverse action. The administrative
judge instructed him to submit any requests for discovery
directly to the VA and to attempt to resolve discovery
disputes before filing a motion to compel. Thereafter, on
January 14, 2011, Becker submitted a request for discov-
ery not to the VA, as instructed, but to the administrative
judge, who again informed Becker that discovery requests
must be made to the VA.
BECKER v. VA 3
In due course, the administrative judge considered the
record before her and found that the selected candidate
had more medical billing experience than Becker and
received a higher score in the interview. The administra-
tive judge thus found ample basis for the VA’s hiring
decision. The administrative judge found no evidence to
support the conclusion that Becker’s military service was
a factor in the VA’s decision. The administrative judge
accordingly denied Becker’s claim. The MSPB denied
Becker’s petition for review of the administrative judge’s
decision, and the administrative judge’s decision became
the MSPB’s final decision. Becker then petitioned this
court for review. This court has jurisdiction under 28
U.S.C. § 1295(a).
DISCUSSION
This court must affirm the decision of the MSPB
unless it is “(1) arbitrary, capricious, an abuse of discre-
tion, 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.” 5 U.S.C. § 7703(c); Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1376 (Fed. Cir. 1988). Under the
substantial evidence standard, this court reverses the
MSPB’s decision only “if it is not supported by such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Haebe v. Dep’t of
Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002) (internal
quotation omitted). Under USERRA, the employee ini-
tially has the burden to show “by a preponderance of the
evidence that his military service was a substantial or
motivating factor in the adverse employment action.”
Erickson v. U.S. Postal Serv., 571 F.3d 1364, 1368 (Fed.
Cir. 2009); see 38 U.S.C. § 4311(c)(1).
Becker raises several arguments. Becker first argues
that the MSPB failed to consider all of the facts or prop-
4 BECKER v. VA
erly compare the qualifications of Becker and the selected
applicant. There are two problems with this argument.
First, regardless of how the facts were evaluated as to the
respective qualifications of the candidates, Becker needed
to show that his military service was a substantial factor
in his non-selection to establish his USERRA claim.
However, Becker failed to present any evidence that his
military service played any role in the VA’s selection
decision. Initial Decision, Becker v. Dep’t of Veterans
Affairs, No. NY-4324-11-0071-I-1 (M.S.P.B. Apr. 12,
2011). Second, the standard of review applied by this
court makes clear that the MSPB’s decision need only be
supported by substantial evidence when considering the
record as a whole. See 5 U.S.C. § 7703(c). Here, there is
no question that the record as a whole provided substan-
tial evidence for the Board’s decision, and there is no
evidence to suggest that the MSPB failed to consider the
record as a whole.
Becker next alleges that his privacy rights were vio-
lated in an unrelated matter. This argument has no
merit because Becker fails to show how a prior privacy
violation, even if it occurred, is relevant to his non-
selection for the position at issue. See Becker v. Dep’t of
Veterans Affairs, 414 F. App’x. 274, 277-78 (Fed. Cir.
2011) (nonprecedential) (finding that Becker’s allegations
of prior privacy violations were not supported and were
not shown to be relevant to his USERRA claim).
Becker also argues on appeal that the MSPB failed to
consider the precedent established in Staub v. Proctor
Hospital, 131 S. Ct. 1186 (2011), and Erickson. Neither of
these cases, however, is apposite to the present case, and
Becker has failed to show how they support his appeal.
Becker next asserts that the MSPB denied him discov-
ery. The agency responds that Becker failed to properly
BECKER v. VA 5
request discovery or compel discovery, and that Becker
failed to show an abuse of discretion or that he was
harmed by any denial of discovery. Procedural matters
related to discovery are within the discretion of the
MSPB. Curtin, 846 F.2d at 1378-79. This court will
overturn discovery rulings only if the MSPB abused its
discretion and the petitioner proves “the error caused
substantial harm or prejudice to his rights which could
have affected the outcome of the case.” Id. Becker fails to
meet that burden. First, Becker has not shown that the
MSPB denied him discovery, or that he took steps to
compel the VA to provide him with discovery. Moreover,
even if Becker had been denied discovery, he did not show
that he was harmed or that any such denial affected the
outcome of the case. This is particularly true here, given
the fact that the administrative judge had before her all
the relevant information she requested and received from
the VA, including all “information pertinent to the appel-
lant’s non-selection for the position.” Notice and Order,
Becker v. Dep’t of Veterans Affairs, No. NY-4324-11-0071-
I-1 (M.S.P.B. Jan. 11, 2011).
Finally, Becker argues that the MSBP was biased
against him. But here again, there is no evidence to
substantiate this. Opinions of a judge based on facts from
the record do not constitute bias “unless they display a
deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky v. United States, 510
U.S. 540, 555 (1994); Bieber v. Dep’t of the Army, 287 F.3d
1358, 1362 (Fed. Cir. 2002). Also, “judicial rulings alone
almost never constitute a valid basis for a bias . . . mo-
tion.” Liteky, 510 U.S. at 555.
6 BECKER v. VA
CONCLUSION
For the foregoing reasons, the decision of the MSPB is
affirmed.
AFFIRMED