Gilbert Aguirre v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GILBERT AGUIRRE,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2024-1349
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-4324-22-0026-I-1.
______________________
Decided: October 24, 2024
______________________
GILBERT AGUIRRE, Sacramento, CA, pro se.
BRITTNEY M. WELCH, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
REGINALD THOMAS BLADES, JR., BRIAN M. BOYNTON,
PATRICIA M. MCCARTHY.
______________________
Before HUGHES, LINN, and STARK, Circuit Judges.
PER CURIAM.
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AGUIRRE v. DEFENSE 2
Gilbert Aguirre appeals the Merit Systems Protection
Board’s final order, which denied Mr. Aguirre’s request for
corrective action under the Uniformed Services
Employment and Reemployment Rights Act of 1994.
Because the Merit Systems Protection Board’s decision was
in accordance with the law and supported by substantial
evidence, we affirm.
I
Mr. Aguirre served in combat in the U.S. Air Force from
January 2005 until May 2010. Mr. Aguirre is considered “a
disabled veteran, in part based on post-traumatic stress
disorder (PTSD)” that resulted from his service. See S.A.
14.1
In July 2020, the Defense Logistics Agency (DLA)
appointed Mr. Aguirre to “the competitive service position
of Police Officer.” Id. At the time, Mr. Aguirre’s position had
a two-year probationary period. During this probationary
period, on September 28, 2020, Mr. Aguirre received
written counseling for “a lack of professionalism when
conducting [himself] . . . which caused [another DLA]
employee to feel uncomfortable . . . [and] notif[y] their
supervisor.” S.A. 18; see also S.A. 53 (Form 8).
Approximately a year later, on August 25, 2021,
Mr. Aguirre was issued “a Letter of Instruction for
Restriction on Leave Use,” because the agency believed
Mr. Aguirre was “inappropriately trying to use sick leave
for matters like car trouble instead of using annual leave.”
S.A. 19–20. Then, on September 9, 2021, Mr. Aguirre was
arrested for driving under the influence (DUI). S.A. 14; see
also S.A. 54–55 (arrest report). During the arrest,
Mr. Aguirre allegedly “placed [his] DLA Police Credentials
face-up on the passenger seat, between [himself] and the
1 “S.A.” refers to the supplemental appendix
submitted in connection with the Respondent’s informal
brief.
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AGUIRRE v. DEFENSE 3
[police] Officer,” which the agency viewed as “impl[ying] a
request for leniency.” S.A. 57; see also S.A. 21. After the
DUI arrest, Mr. Aguirre did not have a valid driver’s
license and could therefore not complete a required 12-
week training course.
The agency terminated Mr. Aguirre on September 20,
2021, and the notice of termination cited the DUI and “a
pattern of poor judgment and decision making.” S.A. 14; see
also S.A. 57–59 (notice of termination). The notice of
termination also referenced Mr. Aguirre’s receipt of written
counseling for his inappropriate conduct and his placement
on a leave restriction. S.A. 14–15; see also S.A. 57.
Mr. Aguirre challenged the notice of termination. S.A. 60–
66. His complaint alleged that “the agency discriminated
against him in violation of USERRA [(Uniformed Services
Employment and Reemployment Rights Act of 1994)] on
the basis of his combat veteran status.” S.A. 15; see also
S.A. 93. The assigned administrative judge reviewed
Mr. Aguirre’s pleadings and concluded that Mr. Aguirre
“sufficiently alleged jurisdiction over [his] appeal as a
claim under [USERRA].” S.A. 86 (preliminary status
conference order).
After a hearing on March 9 and 10, 2022, the
administrative judge denied Mr. Aguirre’s request for
corrective action under USERRA. S.A. 13–14. For each
charge that the administrative judge found was a covered
action under USERRA, the administrative judge applied
the factors set out in Sheehan v. Dep’t of the Navy, 240 F.3d
1009 (Fed. Cir. 2001).2 S.A. 27–35. On the first Sheehan
2 The four Sheehan factors allow an employee to
prove the agency acted with discriminatory motivation
where there is only circumstantial evidence. See, e.g., Jones
v. Dep’t of Health & Hum. Servs., 834 F.3d 1361, 1367
(Fed. Cir. 2016). Among other factors, the MSPB considers:
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AGUIRRE v. DEFENSE 4
factor, the administrative judge found that roughly 10
years had passed between Mr. Aguirre’s discharge and any
of the three covered actions. S.A. 27, 32, 34. On the second
factor, the administrative judge found there were no
inconsistencies between the agency’s proffered reasons and
its other actions. S.A. 28–29,3 32, 34. On the third factor,
the administrative judge found Mr. Aguirre’s supervisors
were unaware of his veteran status and that the evidence
indicated there was no hostility towards Mr. Aguirre. S.A.
27–28, 34. On the fourth factor, the administrative judge
concluded Mr. Aguirre was not treated differently than
other employees of his same probationary status who had
committed similar offenses. S.A. 29–32, 33–35.
Mr. Aguirre petitioned for review of the administrative
judge’s initial decision. The Board, in its final order,
concluded that the administrative judge had made several
erroneous findings of fact but nonetheless denied
Mr. Aguirre’s petition for review and affirmed the
administrative judge’s decision. First, the Board concluded
that “the administrative judge erred in finding that
[1] [the] proximity in time between the employee’s military
activity and the adverse employment action,
[2] inconsistencies between the proffered reason and other
actions of the employer, [3] an employer’s expressed
hostility towards members protected by the statute
together with knowledge of the employee’s military
activity, and [4] disparate treatment of certain employees
compared to other employees with similar work records or
offenses.
Sheehan, 240 F.3d at 1014 (alterations added).
3 We note that the administrative judge erroneously
referred to the second Sheehan factor as the third Sheehan
factor. See S.A. 28–29 (“Nor is there inconsistency in the
proffered reason for issuing the Form 8 and other actions,
which is the third Sheehan factor.”).
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AGUIRRE v. DEFENSE 5
[Mr. Aguirre’s] managers were unaware of [Mr. Aguirre’s]
status as a veteran” because of “his approved use of
disabled veteran leave and testimony from his managers
about his use of such leave” S.A. 1. Even so, the Board held
that “there was no indication [Mr. Aguirre’s managers]
knew of the fact of his combat service, which was the basis
for [his] USERRA claim.” S.A. 1. Second, the Board
concluded that the administrative judge erred by citing a
prior DUI that Mr. Aguirre allegedly did not disclose to
DLA. S.A. 2 (citing S.A. 14 n.1). The Board found that this
error was harmless, however, because “there [was] no
indication that the administrative judge relied on the
finding to conclude that [Mr. Aguirre] failed to meet his
burden of showing that his military service was a
substantial or motivating factor in his termination or any
other agency action.” S.A. 2. The Board also rejected
Mr. Aguirre’s argument that there was an abuse of
discretion when the administrative judge declined to
certify an interlocutory appeal. S.A. 2.
Mr. Aguirre appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II
We must affirm the Board’s decision unless it is
“(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); see also Perlick v. Dep’t of Veterans Affs.,
104 F.4th 1326, 1329 (Fed. Cir. 2024).
III
The Respondent, Department of Defense (government),
initially argued in its brief filed April 1, 2024, that we lack
jurisdiction over Mr. Aguirre’s appeal because it was
untimely filed. See Respondent’s Informal Br. 6–7. The
Board issued its final decision on November 6, 2023. S.A.
1. Under 5 U.S.C. § 7703(b)(1)(A), Mr. Aguirre had until
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AGUIRRE v. DEFENSE 6
January 5, 2024—which was 60 days from the issuance of
the final decision—to petition this court for review of the
Board’s decision. Mr. Aguirre’s petition for review was
received by this court on January 8, 2024. ECF No. 1
(“Received: 01/08/2024.”). The government contended that
this untimeliness requires dismissal.
But during the pendency of this appeal, the Supreme
Court decided Harrow v. Department of Defense and held
that the 60-day time limit to petition this court for review
of a final Board decision is not jurisdictional. 601 U.S. 480,
482 (2024). The government then filed a memorandum in
lieu of oral argument. ECF No. 33 at 1 (Respondent’s Mem.
in Lieu of Oral Arg). In this memorandum, the government
withdrew its argument that Mr. Aguirre’s petition should
be dismissed for lack of jurisdiction, in view of Harrow. Id.
at 1.
The government also argued, for the first time, that the
60-day deadline under 5 U.S.C. § 7703(b)(1)(A) is still
mandatory and thus not subject to equitable tolling. Id. at
2. We find that the government forfeited this argument by
failing to raise it in its informal response brief. Although
we may reach forfeited arguments on appeal, we decline to
address the government’s argument here.
Because the government no longer challenges this
court’s jurisdiction over this appeal, and we likewise do not
identify any unfulfilled jurisdictional requirement, we
address this appeal on the merits.
IV
Mr. Aguirre contends that the Board erred in several
respects. We address each argument in turn.
First, Mr. Aguirre contends that the Board should not
have allowed the DLA to provide documentation related to
the DUI arrest. We find no error in the Board’s conclusion
that this error was harmless because there was no sign
that the administrative judge relied on the arrest records
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AGUIRRE v. DEFENSE 7
in determining whether the DLA discriminated against
Mr. Aguirre based on his combat veteran status. S.A. 2.
Second, Mr. Aguirre argues that the administrative
judge erred in denying his motions to compel testimony and
documents related to his combat military service.
Mr. Aguirre, however, has not shown that the decision of
the administrative judge was an abuse of discretion, so the
Board’s decision must be sustained.
Third, Mr. Aguirre alleges that the Board “rush[ed] to
close [Mr. Aguirre’s] case” and did not apply the
appropriate legal doctrine. Petitioner’s Informal Br. 5.
After reviewing the administrative judge’s and the Board’s
decisions, we conclude that the appropriate legal doctrine
under USERRA was followed. The administrative judge
applied the factors set out in Sheehan and Mr. Aguirre has
not shown an abuse of discretion.
Fourth, Mr. Aguirre cites several other sources of law
that he argues should be applied to his case. Mr. Aguirre
cites to 5 C.F.R. § 1201.115(e), which contains the criteria
for grant of a petition or cross-petition for review by the
Board, and broadly argues that the Board should have
applied it in his favor. We do not discern any error with the
Board’s application of § 1201.115(e). Mr. Aguirre also cites
the Family and Medical Leave Act and the Americans with
Disabilities Act, but the Board does not have jurisdiction
under USERRA to adjudicate claims unrelated to
discrimination based on military status. Swidecki v. Dep’t
of Com., 431 F. App’x 900, 903 (Fed. Cir. 2011).
Additionally, Mr. Aguirre cites to the Wounded
Warriors Federal Leave Act of 2015, which provides leave
to new Federal employees who are veterans with service-
connected disabilities to undergo medical treatment and
argues it should have been applied in his favor. Pub. L. No.
114-75, 129 Stat. 640. But the Board examined the
application of the Sheehan factors in consideration of
Mr. Aguirre’s leave restriction and found that the combat
military service was not a substantial or motivating factor
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AGUIRRE v. DEFENSE 8
underlying the restriction. S.A. 1. Mr. Aguirre also cites to
USERRA’s antidiscrimination provisions, but the Board
found he failed to show that his combat military service
was a substantial or motivating factor in his termination.
S.A. 1. We conclude that the Board’s findings were
supported by substantial evidence in both respects.
Mr. Aguirre also makes several procedural arguments.
Mr. Aguirre cites Cleveland Board of Education v.
Loudermill, which considered what pre-termination
processes must be given to a public employee who can be
dismissed only for cause. 470 U.S. 532, 535 (1985).
Employees still in a probationary period, however, are not
guaranteed the same pretermination processes that
Loudermill sets out. Holland v. Merit Sys. Prot. Bd.,
796 F. App’x 1018, 1025 (Fed. Cir. 2020). Because
Mr. Aguirre was in a probationary period, all that was
required for termination was written notice and an
effective date of action. 5 C.F.R. § 315.804. Thus, the Board
did not err in determining Loudermill did not apply. He
also cites to cases involving whistleblower protections, ex
parte communications, and an employee’s right to have
union representation at an investigatory interview.
Mr. Aguirre does not argue that he was a whistleblower,
does not allege ex parte communications, and did not
participate in an investigatory interview, so these cases are
inapplicable. Finally, Mr. Aguirre broadly cites to the Fifth
and Fourteenth Amendments; however, because he was a
probationary employee, the Board did not err in not
considering the specific processes set out in Loudermill and
other due process cases.
V
We have considered petitioners’ remaining arguments
and find them unpersuasive. For the reasons above, we
affirm the Board’s decision.
AFFIRMED
COSTS
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No costs.
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