Searcy v. Merit Sys. Prot. Bd.

ANDREW SEARCY, JR., Petitioner,

v.MERIT SYSTEMS PROTECTION BOARD, Respondent.

ANDREW SEARCY, JR., Petitioner,

v.DEPARTMENT OF AGRICULTURE, Respondent.

2012-3033

2012-3054

United States Court of Appeals for the Federal Circuit

Decided: June 14, 2012

NOTE: This disposition is nonprecedential.

Petitions for review of the Merit Systems Protection Board in case nos. AT0752110243-I-1.

Petitions for review of the Merit Systems Protection Board in case nos. AT432410 0356-B-1.

ANDREW SEARCY, JR., of Peachtree City, Georgia, pro se.

CALVIN M. MORROW, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With him on the brief were JAMES M. EISENMANN, General Counsel, and KEISHA DAWN BELL, Deputy General Counsel.

Before DYK, PROST, and O'MALLEY, Circuit Judges.

PER CURIAM.

Andrew Searcy, Jr. appeals two separate final decisions of the Merit Systems Protection Board ("Board"). Although these appeals were not consolidated before us, we address Searcy's appeals in a single decision in light of their shared background and procedural history. In Searcy v. Department of Agriculture, No. AT-4324-10-0356-B-1 (M.S.P.B Dec. 16, 2011) ("Searcy v. USDA"), the Board dismissed Searcy's claims against the united States Department of Agriculture ("USDA") under the uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), the Veterans' Reemployment Rights Act of 1940 ("VRRA"), and the Veterans Employment Opportunity Act of 1998 ("VEOA"). We affirm the Board's dismissal of Searcy's USERRA and VRRA claims as supported by substantial evidence, and affirm the Board's dismissal of Searcy's VEOA claim for lack of jurisdiction. In Searcy v. Department of Agriculture, No. AT-0752-11-0243-I-1 (M.S.P.B. Nov. 10, 2011)("Searcy v. MSPB"), the Board dismissed Searcy's claim of constructive removal as untimely. We affirm that decision as supported by substantial evidence.

I.

Searcy served on active military duty from August 1, 1964 to July 31, 1967. In 1967, Searcy joined the civil service and began working for the Federal Water Pollution Control Administration. In 1974, Searcy transferred to the USDA Forest Service Southeastern Forest Experiment Station in Asheville, North Carolina. In 1975, Searcy enrolled full-time in a post-graduate program at Northwestern University under the provisions of the Government Employees Training Act. In connection with enrollment in that program, Searcy signed Form AD-821 through which he agreed to remain in the employ of the Forest Service in exchange for tuition benefits. In 1976, Searcy signed a second agreement to extend his enrollment in the post-graduate program through 1979 and later signed a third agreement to extend his enrollment through December 31, 1981. As memorialized in Form AD-821, the USDA agreed to pay Searcy's tuition and salary in exchange for Searcy's employment with the USDA for a period of time equal to three times the training period length or repayment of the training costs.

According to the USDA, Searcy left Northwestern University on March 28, 1977 without completing his training program, and did not return to his position with the Forest Service. The USDA terminated Searcy for separation by abandonment effective May 30, 1977. Searcy was listed as indebted to the agency in the USDA's final salary payment report and, on January 30, 1979, the USDA placed a lien on Searcy's Civil Service Retirement System account through Standard Form 2805 to satisfy his debt of $11,036.99.

On August 27, 1997, Searcy sought Equal Employment Opportunity ("EEO") counseling, alleging he had been discriminated against on the basis of race and was coerced into resigning from the USDA in 1978. Searcy filed a complaint subsequent to this counseling and, in response to the Equal Employment Opportunity Commission's ("EEOC") requests for information, stated that he had not sought EEO counseling at the time of the incident because the USDA had not provided EEO counselors. The EEOC dismissed Searcy's complaint on April 16, 1999, for failure to timely contact an EEO counselor within the forty-five day limit provided by EEOC regulations, finding that Searcy had not used due diligence in pursuit of his claim over the nineteen year delay.

On June 12, 2006, Searcy received notice from the Office of Personnel Management ("OPM") that his application for deferred retirement was denied because his retirement contributions had been forfeited to pay his debt. Searcy sought EEOC counseling for this matter on January 14, 2008. Searcy filed an EEO formal complaint on February 6, 2008, alleging discrimination on the basis of race. Specifically, Searcy complained that his retirement contributions were forfeited due to forced termination on the basis of race. The EEOC complaint was dismissed on July 21, 2009, by an administrative judge ("AJ") for untimely EEO counselor contact, noting that "the alleged discriminatory act occurred in June 2006, but complainant did not initiate contact with an EEO counselor until January 14, 2008." The AJ further noted that the complaint appeared to be a second attempt to litigate a prior EEO complaint or improperly collaterally attack the administration of his retirement benefits when the discrimination occurred at a different agency in the late 1970s.

On May 26, 2009, Searcy submitted a complaint to the Department of Labor ("DOL") alleging that his veteran's preference was used to intentionally subject him to a racially discriminatory work environment and to deny him of USERRA/VRRA benefits of employment. Searcy requested Office of Special Counsel ("OSC") or Veterans' Employment and Training Service ("VETS") assistance for his claim. On August 31, 2009, Searcy's request for assistance from VETS for his USERRA/VRRA claim was denied, and Searcy was informed of a right to seek OSC assistance or to file a USERRA/VRRA appeal to the MSPB. The letter received by Searcy disclaimed any VEOA violations stemming out of the actions in the late 1970s, but did not address the alleged continuing VEOA violations. On December 29, 2009, the OSC denied Searcy's request for OSC assistance regarding his USERRA/VRRA claims. The OSC letter did not address any of Searcy's VEOA claims.

II.

The present petitions for review arise out of Searcy's initial appeal to the Board, Searcy v. Department of Agriculture, No. AT-4324-10-0356-I-1, on January 9, 2010, of his 2008 EEOC complaint, including a complaint of a violation of his due process rights for withdrawal of his retirement funds, and his complaints and requests for assistance from VETS and OSC regarding his USERRA/VRRA and alleged VEOA claims. On February 1, 2010, the AJ ordered that Searcy provide evidence showing USERRA jurisdiction over his claims and proof that he had exhausted his claim within the Department of Labor. On March 19, 2010, following Searcy's response, the AJ dismissed Searcy's appeal for lack of jurisdiction, noting that he had not shown any evidence suggesting Board jurisdiction existed over his USERRA/VRRA claims. Searcy petitioned the Board for review of thisdecision on March 21, 2010. On November 30, 2010, the Board granted Searcy's petition for review, reversed the AJ's decision, and remanded for further consideration. The Board decided: (1) that Searcy had established USERRA/VRRA jurisdiction, (2) that the AJ was required to provide Searcy with the opportunity to establish VEOA jurisdiction, and (3) that the AJ was required to docket Searcy's constructive termination claim as a new appeal. On December 10, 2010, pursuant to the Board's orders, the AJ ordered Searcy to present evidence showing VEOA jurisdiction.

A. Searcy v. MSPB

In accordance with the AJ's December 10, 2010, order, Searcy filed allegations on December 13, 2010 regarding his constructive termination claim. The USDA responded on December 29, 2010, disputing Searcy's claims regarding separation from the USDA, and requesting that Searcy's appeal be denied as untimely and as lacking jurisdiction. On March 17, 2011, the AJ ordered Searcy to file evidence showing that he had timely appealed or that he had good cause for a delay in filing. Searcy responded that he was not made aware of his appeal rights. Despite this contention, on March 20, 2011, the AJ dismissed Searcy's constructive termination claim as untimely. The AJ concluded that Searcy had not exercised due diligence in discovering his appeal rights and filing his appeal, regardless of whether notice of appeal rights was required for his separation. Searcy petitioned the Board for review of the AJ's dismissal on March 31, 2011.

On November 10, 2011, the Board denied review of the AJ's dismissal. The Board explained that, if notice of appeal rights was not required, Searcy had not explained when or how he learned of those rights, if he had exercised due diligence in discovering them, or that he hadexercised due diligence on filing his appeal. The Board further explained that, if notice of appeal rights were required, Searcy did not show that he was diligent in filing after he learned he could do so. In particular, the Board referenced the delay between Searcy's August 27, 1997 EEO counseling and his 2009 complaint as evidence of a lack of diligence and rejected Searcy's request for tolling.

B. Searcy v. USDA

Also in response to the December 10, 2010 order, Searcy filed allegations with the Board regarding his USERRA/VRRA claim and jurisdiction over his VEOA claim. The AJ held hearings on the merits of the USERRA/VRRA claims and the jurisdiction over the VEOA claims, including a telephonic status conference. Following this conference, Searcy submitted a list of six jobs about which he alleges he inquired, but for which he had not necessarily completed formal application. On March 30, 2011, the AJ dismissed Searcy's VEOA claim for lack of jurisdiction and his USERRA/VRRA claims for failure to state a claim upon which relief can be granted. The AJ explained that the USERRA was...