Barry v. Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PAUL P. BARRY,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2017-2142
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3330-17-0056-I-1.
______________________
Decided: November 15, 2017
______________________
PAUL P. BARRY, Merritt Island, FL, pro se.
DOUGLAS GLENN EDELSCHICK, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., TARA
K. HOGAN; KEVIN F. PHILLIPS, Defense Logistics Agency,
New Cumberland, PA.
______________________
Before MOORE, CHEN, and STOLL, Circuit Judges.
2 BARRY v. DEFENSE
PER CURIAM.
Paul P. Barry appeals from a Merit Systems Protec-
tion Board (Board) decision dismissing his Veterans
Employment Opportunities Act of 1998 (VEOA) claim on
the merits and his Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) claim for
lack of jurisdiction. Because the Board’s decision is not
legally erroneous and supported by substantial evidence,
we affirm.
BACKGROUND
In early 2016, Mr. Barry, a preference-eligible veter-
an, applied for a vacant position as a Program Analyst
posted by the Defense Logistics Agency (Agency). The
vacancy announcement was posted as a merit promotion
announcement. The announcement required candidates
to submit a questionnaire, and candidates received a score
based on their responses. Sixty applicants had a score of
100, and at least 16 applicants, including Mr. Barry, had
a score of 98. Consistent with a Master Labor Agreement
covering the position, the Agency established a “cut-off
score” of 100 to fill the position. The Agency subsequently
notified Mr. Barry that he was not eligible for the posi-
tion.
On August 2, 2016, Mr. Barry appealed this decision
to the Board. He argued the Agency violated his veterans’
preference rights under VEOA in connection with his non-
selection. He also alleged discrimination based on his
prior military service, in violation of USERRA.
In the initial decision, the Administrative Judge (AJ)
denied Mr. Barry’s claims for relief pursuant to VEOA
and USERRA. The AJ found Mr. Barry was not deprived
of a meaningful opportunity to apply for the position
because he simply failed to meet the minimum cut-off
score. She reasoned that because the Agency used a merit
promotion process, VEOA did not entitle Mr. Barry to
BARRY v. DEFENSE 3
additional points added to his score. She found Mr. Barry
failed to produce evidence that his military service was a
substantial or motivating factor in the Agency’s action in
support of his USERRA claim. The initial decision be-
came the final decision of the Board on April 11, 2017.
Mr. Barry appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a Board decision unless it is:
(1) arbitrary, capricious, an abuse of discretion, or other-
wise 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).
“The VEOA provides preference eligible veterans with
a right to file a claim for any agency hiring decision that
violated the veteran’s rights under a statute or regulation
relating to veteran’s preference.” Lazaro v. Dep’t of Veter-
ans Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012) (citing 5
U.S.C. § 3330a). However, “the VEOA does not enable
veterans to be considered for positions for which they are
not qualified.” Id. at 1319.
“[U]nder the merit promotion process, the position is
only open to persons already employed by the agency and
to veterans.” Dean v. Consumer Prod. Safety Comm’n,
548 F.3d 1370, 1373 (Fed. Cir. 2008). “A preference
eligible veteran is not entitled to veterans preference as to
selection under the merit promotion process, but receives
a right to apply and an opportunity to compete for the
position.” Id. (internal quotation marks and alteration
omitted).
“The anti-discrimination provision of USERRA, 38
U.S.C. § 4311(a), states that a person who is a member of
a uniformed service shall not be denied ‘initial employ-
ment, reemployment, retention in employment, promo-
4 BARRY v. DEFENSE
tion, or any benefit of employment’ on the basis of his
membership in the military or performance of military
service.” Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d 1374,
1379 (Fed. Cir. 2017). To establish that the Board has
jurisdiction over his USERRA discrimination claim,
Mr. Barry “must make a nonfrivolous allegation that his
military service was ‘a substantial or motivating factor’ in
the agency’s action in question.” Id. at 1379–80.
On appeal, Mr. Barry argues that the Agency’s use of
coding and other automated tools, allegedly without
human review, caused his non-consideration and non-
selection. Citing Lazaro, 666 F.3d at 1318, Mr. Barry
argues the Agency should have considered more factors in
the selection process. Lazaro, however, did not involve a
job vacancy pursuant to a merit promotion process, and
Mr. Barry identifies no legal error in the Agency’s use of
the merit promotion process or its adoption of a cut-off
score of 100 to fill the vacancy. He claims the cut-off score
was not equally applied between veterans groups, but
substantial evidence supports the Board’s finding that the
Agency applied the same cut-off score to all applicants.
The Board correctly applied the law to Mr. Barry’s VEOA
claim and substantial evidence supports its underlying
findings.
The Board properly dismissed Mr. Barry’s USERRA
claim because he has not made nonfrivolous factual
allegations suggesting he was discriminated against
based on his military service. The Board set forth the
jurisdictional standard for Mr. Barry’s USERRA claim. It
found Mr. Barry “failed to produce either direct or circum-
stantial evidence that his military service was a substan-
tial or motivating factor in the agency’s action.” Although
the Board’s acknowledgement order did not advise Mr.
Barry of the requirements to establish Board jurisdiction
over his USERRA claim, the Agency advised him in its
motion on jurisdiction before Mr. Barry responded to the
Board’s acknowledgement order with his proof of jurisdic-
BARRY v. DEFENSE 5
tion. Thus, there is no prejudicial error. We hold that the
Board properly dismissed Mr. Barry’s USERRA claim for
lack of jurisdiction.
Mr. Barry argues that under Kirkendall v. Depart-
ment of the Army, 479 F.3d 830, 844–46 (Fed. Cir. 2007)
(en banc), he has a right to a hearing on the merits of his
USERRA claim. In Kirkendall, we held a USERRA
claimant has a right to a hearing upon request. 479 F.3d
at 844–46. We did not hold the Board should hold a
hearing on the merits of a claim over which it has no
jurisdiction. Likewise, we did not hold that there must be
a hearing on jurisdiction.
We have considered Mr. Barry’s remaining arguments
and find them unpersuasive.
AFFIRMED
COSTS
No costs.