Opinion

Richard Becker v. Department of Defense

Court: Merit Systems Protection Board
Filed: Oct 13, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD A. BECKER, DOCKET NUMBER

Appellant, DA-3443-16-0064-I-1

DEPARTMENT OF DEFENSE, DATE: October 13, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard A. Becker, Coram, New York, pro se.

Susan J. Sandidge, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his nonselection appeal for lack of jurisdiction. Generally, we grant

petitions such as this one only when: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative 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. 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, 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).

¶2 On April 24, 1966, the appellant, a preference eligible, resigned from his

position as a Resident Manager at the Army & Air Force Exchange Service

(AAFES or agency) in Jakor. Initial Appeal File (IAF), Tab 32, Initial Decision

(ID) at 1-2. 2 AAFES is a Nonappropriated Fund Instrumentality (NAFI) of the

United States operating under the Department of Defense (DOD). ID at 2. The

appellant filed an appeal with the Board alleging that he has been applying

annually for employment with AAFES since 1968 and his applications have been

overlooked. ID at 2. He argued that AAFES failed to acknowledge or respond to

any of his requests for reinstatement to his former position because of

discrimination based on his marriage to a Japanese woman and unspecified

retaliation. Id. The appellant also alleged that the agency violated the Uniformed

Services Employment and Reemployment Rights Act of 1994 (USERRA)

(codified as amended at 38 U.S.C. §§ 4301-4335) and/or the Veterans

“Jakor” is a reference to “Japan/Korea.” ID at 2 n.2.

Employment Opportunities Act of 1998 (VEOA). 3 ID at 4; IAF, Tab 15 at 3. The

appellant did not request a hearing on his appeal. ID at 2.

¶3 Because a question existed regarding the Board’s jurisdiction over this

appeal, the administrative judge notified the appellant of the elements and

burdens of establishing jurisdiction over his appeal under the applicable legal

standards, including VEOA and USERRA, and she ordered him to file evidence

and argument establishing the Board’s jurisdiction. IAF, Tabs 2, 8, 18. The

appellant responded by asserting that he is a Gulf War veteran and that AAFES is

part of DOD and thus subject to the Board’s jurisdiction. ID at 3; IAF, Tab 3.

The appellant also asserted that, although he had filed complaints with the Equal

Employment Opportunity Commission, the Department of Labor (DOL), and the

Office of Special Counsel, he had not received any reply to those complaints. ID

at 3; IAF, Tab 3. The appellant did not indicate the bases for his complaints or

state when he filed them, or provide copies of them. ID at 3 n.5. The agency

responded by filing a motion to dismiss, arguing that the appeal was outside the

Board’s purview because the appellant was not an employee of AAFES, he

provided no evidence to show that he ever applied, or was not selected, for a

position or that he was denied reinstatement, and the AAFES is a NAFI, over

which the Board lacks jurisdiction. In the alternative, the agency argued that the

appeal was untimely filed. 4 IAF, Tab 7, at 5-7.

¶4 After considering the parties’ submissions on the jurisdictional issue, the

administrative judge dismissed the appeal for lack of jurisdiction based on the

written record. ID at 3-12. In dismissing the appeal, the administrative judge

found that the Board has no jurisdiction over the appeal of an adverse action filed

It is undisputed that the appellant performed military service and received an

honorable discharge. ID at 9.

Because the administrative judge dismissed the appeal for lack of jurisdiction, she did

not make findings on the agency’s argument that the appeal was untimely filed.

by NAFI employees or former employees of AAFES. ID at 4. The administrative

judge also found that the appellant failed to establish by preponderant evidence

that he exhausted his administrative remedies with DOL regarding the agency’s

failure to select him for a position; therefore, his request for corrective action

under VEOA must be dismissed. ID at 11-12. The administrative judge further

found that the appellant failed to establish jurisdiction over his appeal under

USERRA, applying the criteria for establishing jurisdiction over both

reemployment claims and discrimination claims under that statute . ID at 10,

12-13. In support of this finding, the administrative judge determined that the

Board lacks jurisdiction over this appeal as a USERRA reemployment case

because the appellant did not establish he was entitled to assert a right to

reemployment under 38 U.S.C. §§ 4312-4318, given that he failed to show that

his 1966 resignation from AAFES was related to his performance of military duty

and both his employment and military duty occurred prior to 1994, the effective

date of the applicable statute. ID at 5. The administrative judge, moreover,

found that the appellant did not demonstrate that the Board has jurisdiction over

his appeal because he did not show that his military status was a motivating or

substantial factor in the agency’s failure to select him for the position(s) he

sought. ID at 9-11.

¶5 The appellant has filed a petition for review with the Board challenging the

initial decision. Petition for Review (PFR) File, Tab 1. The agency has

responded in opposition to his petition, and he has replied. PFR File, Tabs 3-4.

¶6 On review, the appellant generally references VEOA and USERRA, but he

does not clearly address the jurisdictional issues beyond mentioning that he made

sufficient allegations in his previous Board appeals to establish jurisdiction here. 5

The appellant has filed more than 80 appeals with the Board. Although that could

mean that some or all of the claims raised by the appellant in this case are barred under

the doctrines of collateral estoppel or res judicata, we have not addressed those issues

PFR File, Tab 1 at 2. The appellant raises various arguments unrelated to the

dispositive jurisdictional issues, claiming that the agency lacked candor,

attempted to denigrate his employment history, and went out of its way to “cover

up the gross violations of the laws.” Id. The appellant also submits an illegible

copy of a letter he wrote to AAFES in 1979 inquiring about the status of a 1978

reinstatement application, which he filed in the Board’s Dallas Re gional Office

on August 4, 2016. Id. at 3.

¶7 Most of the appellant’s submissions on appeal and on review are difficult to

read. PFR File, Tabs 1, 4; IAF, Tab 14. Nonetheless, for the reasons stated in the

initial decision, we find that the administrative judge properly dismissed this

appeal for lack of jurisdiction. The administrative judge did an excellent job

clarifying the appellant’s various arguments and explaining why the appellant

failed to prove jurisdiction over his appeal under the applicable laws. Because

we find that the appellant’s evidence and argument on review provides no basis

for disturbing the thorough, well-reasoned initial decision, we deny his petition

for review. 6 See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997)

(finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions).

given our finding that the administrative judge properly d ismissed the appeal for lack of

jurisdiction.

On review, although the appellant refers to a letter that he allegedly received from

DOL before the initial decision was issued in this appeal, he did not provide the Board

with a copy of that letter as proof that he exhausted his claims before DOL to establish

jurisdiction over his appeal under VEOA. PFR File, Tab 1 at 2; ID at 12; see

Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 13 (2012) (finding that

the Board must dismiss a VEOA claim if the appellant cannot show that he exhausted

his DOL remedy).

NOTICE OF APPEAL RIGHTS 7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via com mercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Fed eral Circuit or any court

of appeals of competent jurisdiction. 8 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the