Charles H. Johnson v. Department of Commerce

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHARLES H. JOHNSON,
Petitioner
v.
DEPARTMENT OF COMMERCE,
Respondent
______________________
2023-1889
______________________
Petition for review of the Merit Systems Protection
Board in Nos. CH-3443-13-1466-B-2, CH-4324-13-0112-B-
2.
______________________
Decided: January 16, 2024
______________________
CHARLES H. J OHNSON, Detroit, MI, pro se.
D ELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
Case: 23-1889 Document: 19 Page: 1 Filed: 01/16/2024

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JOHNSON v. COMMERCE 2
Before M OORE, Chief Judge, P ROST and T ARANTO, Circuit
Judges.
P ER CURIAM .
Charles H. Johnson appeals from a Final Order of the
Merit Systems Protection Board (Board) denying his peti-
tion for review and affirming the denial of his request for
corrective action. For the reasons discussed below, we af-
firm.
BACKGROUND
Mr. Johnson is a preference eligible veteran who served
over 16 years in the Air Force. Appx. 50.1 Between 1998
and 2010, Mr. Johnson held various temporary appoint-
ments within the Department of Commerce. In 2012 and
2013, Mr. Johnson filed appeals with the Board challeng-
ing the termination of his employment with Commerce and
alleging discrimination under the Uniformed Services Em-
ployment and Reemployment Rights Act of 1994
(USERRA) (codified as amended in 38 U.S.C. §§ 4301–
4335). Appx. 12, 23. The Board dismissed the portions of
the appeals challenging Mr. Johnson’s termination for lack
of jurisdiction because Mr. Johnson was not a covered em-
ployee pursuant to 5 U.S.C. § 7511. Appx. 14–15, 24. The
Board dismissed the USERRA portion of the appeals for
lack of jurisdiction because Mr. Johnson did not allege his
military service was a substantial or motivating factor in
his termination. Appx. 15–16.
On petition for review, the full Board joined the cases
and affirmed the decisions regarding lack of jurisdiction
over the termination challenges. Appx. 33. The Board re-
manded for the administrative judge to provide Mr. John-
son notice of his jurisdictional burdens and for a hearing
1 “Appx.” refers to the appendix filed with Respond-
ent’s Corrected Informal Brief.
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JOHNSON v. COMMERCE 3
on the merits of his USERRA claim. Appx. 38. On remand,
the administrative judge notified Mr. Johnson of his juris-
dictional burden under USERRA. Appx. 76–90.
Mr. Johnson filed a motion arguing that Commerce’s
failure to provide him notice of his rights to appeal under
the Demonstration Projects created by the Veterans Bene-
fits Improvement Act of 2004 and extended by the Veter-
ans’ Benefit Act of 2010 (2004/2010 Demonstration
Projects) established Board jurisdiction. Order on Appel-
lant’s Motion for Jurisdiction and Closing the Record at 1,
Johnson v. Dept. of Commerce, No. CH-4324-13-0112-B-2
(M.S.P.B. July 15, 2016) (July 16 Order). The administra-
tive judge denied the motion because the 2004/2010
Demonstration Projects do not create additional USERRA
jurisdiction. Id. at 2. The Board’s subsequent Initial Deci-
sion denied Mr. Johnson’s claim for corrective action under
USERRA. Appx. 54–55. In its Final Decision, the Board
denied Mr. Johnson’s petition for review and affirmed the
Board’s Initial Decision. Appx. 64. Mr. Johnson appeals.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
In reviewing a final decision of the Board, we must
“hold unlawful and set aside any agency action, findings,
or conclusions found to be (1) arbitrary, capricious, an
abuse of discretion, 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). Whether the
Board lacks jurisdiction is a question of law we review de
novo. Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.
Cir. 1995). The Board must provide notice to an appellant
of his burden to demonstrate jurisdiction (Burgess notice).
Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643–44 (Fed.
Cir. 1985).
Mr. Johnson argues the Board erred in dismissing his
USERRA claim related to the 2004/2010 Demonstration
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JOHNSON v. COMMERCE 4
Projects. Appellant Brief at 9–10. Mr. Johnson asserts the
Board failed to provide Burgess notice of the jurisdictional
requirements for USERRA claims brought under the
2004/2010 Demonstration Projects. Id. at 6; see also Reply
Brief at 8.
The Board properly rejected Mr. Johnson’s jurisdic-
tional argument in its July 2016 Order. July 16 Order at
2. The 2004/2010 Demonstration Projects allowed a subset
of USERRA complaints filed during a specific time period
to be investigated by the Office of Special Counsel. Veter-
ans Benefits Improvement Act of 2004, Pub. L. No. 108–
454, § 204, 118 Stat. 3598, 3606 (2004); Veterans’ Benefits
Act of 2010, Pub. L. No. 111–275, § 105, 124 Stat. 2864,
2868 (2010). The 2004/2010 Demonstration Projects did
not provide any additional basis for Board jurisdiction. See
Appx. 52. The Board was therefore not required to provide
a separate Burgess notice for how to establish jurisdiction.
Because the Board’s original Burgess notice for Mr. John-
son’s USERRA claim was sufficient, we affirm. Appx. 77–
82.
CONCLUSION
We have considered Mr. Johnson’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm.
AFFIRMED
COSTS
No costs.
Case: 23-1889 Document: 19 Page: 4 Filed: 01/16/2024

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